The Disappearing Defendant: Smart Strategy or Critical Error

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

The Sixth Amendment guarantees the right to have an attorney present during criminal proceedings to every criminal defendant.[1] Since the amendment was ratified, courts have modified that guarantee to require that defendants not only have a right to counsel, but have a right to effective assistance of counsel. The issue of effectiveness of counsel has been evaluated based on a number of conditions, one of which is the decision to call the defendant to testify at trial. The decision to call a defendant to testify at trial involves weighing complex influences and ultimately, determining that the potential positive effects outweighs the significant risk.[2] This critical decision troubles defense attorneys and the attorney often shies away from putting his client on the stand. However, if an attorney does decide to call the defendant to testify, then later changes his mind, is that ineffective assistance? Federal courts have answered this question differently and though their analyses initially seems to suggest the issue is unsettled, in reality they apply similar factual analyses to different factual scenarios.

In 2002, the First Circuit found that an attorney’s promise to present the defendant’s testimony at trial and then failure to do so met the standard of ineffective assistance of counsel.[3] However, the Eighth Circuit split from the First Circuit’s ruling in 2017.[4] This split led to the question at hand: whether promising the jury during opening statements that they would hear from the defendant then choosing not to call the defendant at trial equates to ineffective assistance of counsel. The answer lies in the events that unfolded during the trial. It is reasonable for an attorney to choose not to call a defendant in light of changed circumstances.[5] However, if nothing unforeseeable occurs during trial, the attorney’s choice not to call the defendant after promising to do so is deemed ineffective assistance of counsel.

Ouber v. Guarino

In 2002, an inmate sought habeas corpus relief in a federal district court on a drug-trafficking conviction.[6] Her claim of ineffectiveness of counsel was based on her attorney’s repeated promise to the jury during opening statements that they would hear from the defendant and then later decided not to call the defendant at trial.[7] The defendant faced a significant battle to be heard on the issue. The defendant was only heard in federal court on this petition after the trial court denied her motion for a new trial. However, the federal district court granted her habeas petition based on the Massachusetts Appeals Court’s unreasonable application of the widely-used Strickland standard.[8]

In Strickland v. Washington, the court laid out the controlling standard for deciding ineffective assistance of counsel claims, namely that the defendant must show (1) that counsel’s performance was deficient; and (2) the deficient performance by counsel prejudiced the defense.[9] In applying this standard, the district court first addressed the deficiency prong, also referred to as the “performance prong.” To show that the counsel’s performance was deficient, counsel’s error must be so serious that counsel is considered not functioning within the guarantees of the Sixth Amendment.[10] This difficult standard is made more burdensome by the fact that Strickland requires significant deference in favor of the attorney.[11] Nevertheless, the district court found that Ouber’s attorney met that standard.[12] Specifically, the court found that the attorney’s decision to present the petitioner’s testimony as the centerpiece of the defense coupled with his later decision not to call the defendant rose to the level of a violation of the first Strickland prong.[13]

The court repeatedly emphasized the fact that the information the attorney had during his opening statement had not changed between the attorney’s initial promise and his subsequent decision not to call the defendant.[14] The court stressed that the testimony elicited during the trial was exactly what the attorney expected when he made his opening statement where he promised the jury not once, but four times, that the defendant would testify.[15] In addition, the court based its holding on the fact that the attorney failed to inform the petitioner about the possible negative impact of not testifying.[16] In the eyes of the court, the decision to advise the client not to testify with no circumstantial changes and the lack of explanation given to the petitioner about the possible negative effects of that decision rose to the level of a violation of the petitioner’s Sixth Amendment right to effective counsel.[17]

However, finding that counsel was ineffective is only the first hurdle to proving an ineffective assistance of counsel claim.[18] Strickland dictates that the court must then show that the error of counsel prejudiced the petitioner in some way.[19] An error will be found prejudicial if there is a strong possibility that it affected the outcome of the case.[20] Although this is often difficult to prove, prejudicial error was clear in Ouber.[21] The petitioner’s conviction came in not her first, but rather her third trial on the issue after the first two trials resulted in mistrials.[22] The only substantial difference in the third trial was the absence of her testimony as a witness in the case.[23] Noting this departure from the first two trials and the difference in outcome, the court found that the decision not to call the petitioner was outcome determinative and prejudiced the defendant.[24] Ultimately, the court found that the state court misapplied the Strickland standard and failed to correctly conclude that defense counsel’s actions rose to the level of ineffective assistance of counsel.[25]

Bahtouch v. Smith

Recently, the Eighth Circuit reexamined the issue of ineffective assistance of counsel based on a failed promise to have the defendant testify in Bahtuoh v. Smith.[26] Here, contrary to Ouber, the court denied the petitioner’s habeas petition, finding the defense attorney’s decision not to call the defendant to testify after promising to do so in opening statements did not rise to the level of a Sixth Amendment violation.[27] Again applying the standards set forth in Strickland, the Eighth Circuit found the Minnesota Supreme Court’s application of Strickland’s performance prong was reasonable.[28]

During the trial, the prosecution presented a witness that offered testimony defense counsel did not expect. That unforeseen testimony made the defendant’s testimony seemingly unnecessary and defense counsel decided against calling the defendant as a witness.[29] In this scenario, the court found that the decision not to call the defendant was reasonable given the unexpected change during the trial.[30]

Reviewing the state court’s application of Strickland, the Eighth Circuit referenced Ouber v. Guarino and the seemingly inconsistent holding, noting a key difference in the circumstances of the two cases.[31] The court stressed that in Ouber there was no change or unforeseen development in the case between the counsel’s opening statement promise and his decision to not call his client. Conversely, in Bahtouh there was a development – namely that the prosecution’s witness presented the information that the defense counsel hoped to elicit from the defendant’s testimony– and thus the change in strategy was justified.[32]

The Key Difference

Although Bahtouh and Ouber appear to be exact opposites, there is an important distinction that makes each case a proper application of the Strickland standard and renders the cases compatible. The developments during the trial were distinct. Critical to the outcome of both cases was whether there were any unexpected developments during trial that justified the decision not to call the defendant. Both courts correctly analyzed the issue using the established standard for evaluating ineffective assistance of counsel claims and applied that standard to the differing factual situations.

In Ouber, the lack of unexpected developments during trial made the decision not to call the defendant ineffective just as the presence of unexpected developments in Bahtuoh validated the opposite conclusion. This key difference in the two trials not only explains the difference in the outcomes, but is in harmony with common sense. A defense attorney making a decision based on new information gained at trial should not be held as ineffective simply because their evaluation of the new information happened to lead to a conviction. Conversely, if an attorney makes an explicit promise to call the defendant and fails to fulfill that promise without cause, the attorney should be held accountable for that poor judgment.

Both courts correctly analyzed the ineffective assistance of counsel issue and the specific question addressed in these cases involving the promise to call the defendant as a witness is not left unresolved. The Bahtuoh court was able to clearly distinguish the facts of their case from the previous ruling in Ouber thus justifying their opposite holding. Both holdings can be properly applied to future cases involving ineffective assistance of counsel claims depending on the developments that take place during the trial.

Conclusion

The First and Eighth Circuits both correctly applied the Strickland standard in their review of the respective cases. The apparent split between the two courts on the ineffectiveness of counsel claims is instead the same analysis that rendered opposite conclusions. Those different holdings are merely based on factual differences in the two cases. The two decisions both stand for the central conclusion that the dispositive factor in determining ineffectiveness of counsel in the above situation is whether anything changed between the opening statement and the decision not to call the defendant as a witness at trial. If such a change or unexpected development occurs, counsel can reevaluate the situation and make an informed decision about the value of calling the defendant without being rendered as ineffective. On the other hand, if no such development exists, counsel will be found ineffective if he reneges on his promise.

[1] “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” U.S. Const. Amendment I

[2] The risk of harm to the defendant’s credibility through cross examination often outweighs any good will that can be established through direct.

[3] Ouber v. Guarino, 293 F.3d 19, 20 (1st Cir. Mass. 2002); Ineffective assistance of counsel is found when the attorney’s performance is considered not to have met the Sixth Amendment guarantee for assistance of counsel in defense at criminal trials.

[4] Bahtuoh v. Smith, 855 F.3d 868, 874 (8th Cir. Minn. 2017).

[5] Changed circumstances can be information that comes out during trial that was unknown to the attorney during opening statements or otherwise unforeseen events that develop throughout trial.

[6] Ouber, 293 F.3d at 20.

[7] Id.at 20.

[8] Ouber, 293 F.3d at 25.

[9] 466 U.S. 668, 687 (U.S. 1984).

[10] Id.

[11] Id.

[12] Ouber, 293 F.3d at 36.

[13] Id. at 23.

[14] Id. at 25.

[15] Id. at 28.

[16] Id. at 31.

[17] Ouber, 293 F.3d at 32.

[18] Strickland, 466 U.S. at 691.

[19] Ouber, 293 F.3d at 25.

[20] Strickland, 466 U.S. at 693-694.

[21] Ouber, 293 F.3d at 26.

[22] Id. at 21.

[23] Id. at 35.

[24] Id.

[25] Id.

[26] Bahtuoh, 855 F.3d at 874.

[27] Id.

[28] Id. at 872.

[29] Id.

[30] Bahtuoh, 855 F.3d at 873.

[31] Id.

[32] Id. at 872- 873.

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I Want To Go Home: Determining Habitual Residence In International Custody Cases

Monica Welker, Associate Member, University of Cincinnati Law Review

Introduction

In 2000, Americans were glued to news outlets, following the story of Elián González. The previous November, the then-five-year-old escaped from Cuba on a raft with his mother, who drowned while attempting to flee Fidel Castro’s Cuba. His mother’s relatives in Miami were caring for him, but his father, in Cuba, wanted him back. It culminated with an FBI raid of his relatives’ home, and his forced return to Cuba.[1]

The international community sought to avoid child custody cases resorting to this type of international drama through the 1980 Hague Convention on Civil Aspects of International Child Abduction (“Convention”).[2] Its signatories agreed to discourage abduction in international custody disputes.[3] Under the Convention, a child should be retained in or returned to the child’s “habitual residence” to follow the rights of custody of that nation.[4] By design, the Convention did not define a habitual residence. The Convention’s accompanying report explained that “habitual residence” is a well-established concept and a “question of pure fact.”[5] The Convention wanted the courts to take the phrase at face value, and not to be influenced or defined by some domestic law statutes.[6] Therefore, it hoped the courts would adopt a flexible standard based on the factual meaning of the words “habitual residence.”[7]

This lack of clarity regarding how to determine the child’s true “home” has led to differing opinions over how to interpret the Convention and the equivalent U.S. statute enshrining it into U.S. law.  This is problematic, as Judge Kozinski of the Ninth Circuit opined, “without . . . consistency in [the Convention’s] application, parents are deprived of crucial information they need to make decisions.”[8]

Of all the methods available to determine a child’s habitual residence, the most reliable is that of the child’s perspective. It is the least complicated and produces the most logical conclusions.

Background

The Convention was created in 1980, and the United States signed onto it in 1981. It was codified in 1988 as the International Child Abduction Remedies Act (ICARA).[9] Procedurally, aggrieved parents who are citizens of signatory nations to the Convention can file a “petition for return” with their home nation’s central authority designated to handle cases arising under the Convention. This initiates a lawsuit in the nation where the child resides at that time. The first task of the court is to determine the child’s habitual residence, as that is where the child should be returned for a final custody determination. Unfortunately, The Convention and ICARA never defined “habitual residence” which has led to a split of opinion among United States circuit courts over how to determine a child’s habitual residence.

How Is A Child’s Habitual Residence Determined?

The Convention was deliberately vague to encourage a case-by-case analysis, and ICARA adopted the “habitual residence” language without further defining it.[10] The Ninth Circuit wrote that over time, courts would develop a standard for determining how to apply ICARA.[11] This has not happened. While the circuit courts reference each other, two broad standards have emerged.

The first is the child perspective approach. In this approach, a court determines the habitual residence primarily from the point of view of the child. This is not to say that a small child is asked to identify his habitual residence, but instead, an inquiry is conducted to determine the child’s degree of adjustment, and where his ordinary residence appears to be This approach is favored by the British courts and the Third, Fourth, Sixth and Eighth Circuits. The Seventh Circuit remains split on this issue.[12]

The second approach is the parental intent approach. It was first suggested in Mozes v. Mozes, and followed by the Second, Ninth and Eleventh Circuits. In this approach, a court looks at the parents’ last agreed upon habitual residence for the child. A child’s acclimation to an area is only a secondary consideration.

The two approaches are not mutually exclusive. Later cases often incorporate both and indicate which approach should take precedent.[14] Further evidence of the intersection of the two approaches lies in their agreement on what other factors should be considered when determining a child’s habitual residence. Both approaches agree that, in order for a child’s habitual residence to change, there must be both a change in geography and a passage of time to allow for acclimatization.[15]

The Child Perspective Approach

In Re: Bates, a famous British custody case involving a member of the band Duran Duran, the Royal Court of Justice established a definition that many US courts have cited.[16] It began its discussion of habitual residence by holding that there is no difference between an ordinary residence and a habitual residence.[17] The court quoted Shah v. Barnet London Borough Council, another British case, saying, “All that the law requires is that there is a settled purpose.”[18] This demonstrates that the earliest approaches to the matter were based on the ordinary, settled residence of the child and had no interest in developing a test based on anything else.

The first federal United States case to reach the appellate level was Friedrich v. Friedrich.[19] There, the court ruled that when determining habitual residence, a court “must focus on the child, not the parents, and examine past experiences, not future intentions.”[20] In other words, if a child is settled in Country A after a move, but her mom always intended for the family to return to Country B after two years, the child’s habitual residence is Country A.

Feder v. Evans-Feder was a Third Circuit case in 1995 that cited Friedrich and emphasized that a change in a child’s habitual residence could only be altered by a change in geography and the passage of time, not by changes in parental affection and responsibility.[21] This makes clear that the child’s perspective is given more weight than the parents’ intent in the Third Circuit.

Parental Intent Approach

The Mozes opinion inspired many courts to consider the parent’s intent as the dispositive factor when considering a child’s habitual residence. Reaching across the pond, Judge Kozinski explored Shah, where the court connected the “settled purpose” with an intent to settle in a particular habitual residence.[22] After reasoning that a settled purpose requires intent, Mozes ruled that the parents’ intent is superior to the child’s perspective, primarily due to the child’s immaturity.[23]

The Eleventh Circuit decided to use the parental intent approach in Ruiz v. Tenorio.[24] The per curiam opinion wrote that “the opinion of Judge Kozinski in Mozes is not only the most comprehensive discussion of the [determining habitual residence] but [it] also sets out the most appropriate approach.”[25]

Circuits that use the parental intent approach encourage examining the parents’ actions regarding resettling elsewhere. They look to whether the parents sold their old property, the type of visas they obtained in the new potential habitual residence, their understanding when they moved, and their last shared intention for their child. It puts more emphasis on the parents’ actions because uncovering how hesitant a parent was about moving abroad is difficult to prove. Selling property, however, is an objective sign that someone intends to be gone for quite some time.[26]

Discussion

The disagreement between the circuits centers on whether the child’s perspective or the parent’s last shared intent should be the dispositive factor when a court rules on a case. It might first be instructive to explore the plain meaning of the words “habitual residence.” Merriam Webster defines “habitual” normally as an action, but its third definition seems applicable. It reads “resorted to on a regular basis.”[27] Residence is defined as “the act or fact of dwelling in a place for some time.”[28] Reading these definitions together, the plain meaning of habitual residence is the fact of dwelling in a place for some time on a regular basis.

Although Kozinski found the child perspective approach flawed because it relied on the mental state of an immature child, his contention is not supported with any evidence. The child perspective approach merely seeks to determine where the child is most settled, not his subjective desires. It takes into account his friends, his school, his contacts, and where he is acclimated.

However, the proponents of the child perspective approach have found several problems with the parental intent approach. In Stern v. Stern, the court wrote that the Mozes approach undervalued the acclimation and perceptions of the child, who is the very focus of the Convention.[29] The Sixth Circuit was more specific in its criticism of Mozes, saying it “made seemingly easy cases hard and reached results that are questionable at best.”[30] It cited the Eleventh Circuit’s decision in Ruiz, where children that had lived primarily in Mexico almost four years had their habitual residence in the US because their parents had never agreed on their intent to stay in Mexico long term. They reached this conclusion despite their parents selling property, enrolling the children in school, and moving their belongings to Mexico.[31] The children’s perspective would have kept the children in Mexico, where they habitually resided.

The Mozes opinion is not without merit. It helps to clarify habitual residence with a hypothetical: what if a child is away at a two-month summer camp?[32] From the child’s perspective, the camp could potentially be his habitual residence. However, this hypothetical fails when one examines it from the passage of time element of determining a child’s habitual residence, as two months is not enough to make a new place one’s habitual residence unless one has nowhere else to go because one has sold their property and moved all of one’s belongings.

Overall, the biggest advantage to the child perspective approach is its position as the first opinion put forth by a U.S. court. The United States and British cases previously prioritized the child’s perspective when determining habitual residence. Mozes deviated from these precedents, an thus creating unnecessary confusion.

Conclusion

Of the fifteen cases most cited in US circuit courts, only four use the parental intent approach, while the rest use the child perspective approach. This is likely because the child perspective approach is most likely to identify the best interest of the child. The Supreme Court has not yet granted certiorari on a case specifically dealing with habitual residence. Should it choose to, the wealth of definitions it has to choose from among the circuits should hopefully result in a decision that reflects the child’s perspective.

[1] Rick Bragg, The Elian Gonzalez Case: The Overview; Cuban Boy Seized by U.S. Agents and Reunited with his Father, New York Times, April 23, 2000, http://www.nytimes.com/2000/04/23/us/elian-gonzalez-case-overview-cuban-boy-seized-us-agents-reunited-with-his-father.html?mcubz=3.

[2] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 15, 1980, Preamble, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49. [hereinafter Hague Convention]

[3] Id. arts. 1-2.

[4]Id., art. 3.

[5] Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention (official English translation), ⁋66, 1982. [hereinafter Perez-Vera Report]

[6] Linda Silberman, Brigitte M. Bodenheimer Memorial Lecture on the Family: Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1064 (2005) (Professor Silberman was a part of the team that adapted the Convention into US law).

[7] Mozes v. Mozes, 239 F. 3d 1067, 1072 (9th Cir. 2001).

[8] Id.

[9] Tai Vivatvaraphol, Note: Back to Basics: Determining a Child’s Habitual Residence in International Child Abduction Cases Under the Hague Convention, 77 Fordham L. Rev. 3325, 3326 (2009).

[10] supra n. 6.

[11] Mozes, 239 F. 3d 1072.

[12] Sorenson v. Sorenson, 559 F. 3d 871, 873 (8th Cir. 2009), Robert v. Tesson, 507 F. 3d 981, 989 (6th Cir. 2007), Miller v. Miller, 240 F. 3d 392, 400 (4th Cir. 2001).

[13] Gitter v. Gitter, 396 F. 3d 124, 131 (2nd Cir 2005), Ruiz v. Tenorio 392 F. 3d 1247, 1252 (11th Cir. 2004).

[14] Feder v. Evans-Feder, 63 F. 3d 217, 224 (3rd Cir. 1995).

[15] Barzilay v. Barzilay, 600 F. 3d 912, 919 (8th Cir. 2010), Gitter v. Gitter, 396 F. 3d 124, 139 (2nd Cir 2005).

[16] Mozes, 239 F. 3d at 1073-1074.

[17] Re: Bates, No. CA 122.89, High Court of Justice, Family Div’n Ct. Royal Court of Justice (UK 1989).

[18] Id. quoting Shah v. Barnet London Borough Council and other appeals, 1 All E.R. 226, 233 (Eng. H.L. 1983)

[19] Friedrich v. Friedrich, 983 F. 2d, 1398, 1401 (6th Cir. 1993).

[20] Id. at 1401.

[21] 63 F. 3d at 222.

[22] Mozes, 239 F. 3d at 1073-1074.

[23] Id., at 1076.

[24] Ruiz v. Tenorio, 392 F. 3d 1247, 1252 (11th cir. 2004).

[25] Id.

[26] Gitter, 396 F. 3d at 132.

[27] Habitual, Merriam-Webster (online ed.) (Sept. 27, 2017), https://www.merriam-webster.com/dictionary/habitual.

[28] Residence, Merriam-Webster (online ed.) (Sept. 27, 2017), https://www.merriam-webster.com/dictionary/residence.

[29] 639 F. 3d 449, 452 (8th Cir. 2011).

[30] Robert v. Tesson, 507 F. 3d 981, 991 (6th Cir 2007).

[31] Id. [see supra, note 24.]

[32] Mozes, 239 F. 3d at 1074.

Unplanned Obsolescence: Re-examining the Third Party Doctrine in the Digital Age

David Wovrosh, Associate Member, University of Cincinnati Law Review

One of the fundamental rights enshrined in the Constitution ensures that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[1] The Fourth Amendment shields citizens against government intrusion into matters in which there is a “reasonable expectation of privacy.”[2] In order to lawfully intrude into this sphere of privacy, a warrant is required.[3]

The contours of this privacy expectation seem poised for a tectonic shift. Courts must contend with an antiquated legal understanding of privacy expectations while simultaneously reconciling the realities of a digital age. The majority of jurisdictions currently employ an exception to the warrant requirement of the Fourth Amendment if one voluntarily submits digital information to a third party.[4] Nearly every aspect of digital communication—an inescapable necessity of modern life—is routed through the use of third parties.[5] This third-party doctrine should, therefore, be significantly narrowed to better comport with modern expectations of privacy or eliminated altogether.

Zanders v. State: Highlighting the Need for Reform

A recent case in the Indiana Supreme Court underscores the need for reform. In 2015, Marcus Zanders was arrested in Cincinnati, Ohio.[6] Suspected of robbing a convenience store, the police used the store’s call records to determine Zander’s phone number.[7] An Indiana detective, without a warrant, requested and received cell-site location information (CSLI)[8] from Zanders’ cell service provider.[9] This information allowed police to triangulate Zander’s cell phone movements relative to the location of the cell towers, thereby placing him near the crimes.[10] Over Zanders’ objection, the prosecution introduced the CSLI location information at trial.[11] Zanders was convicted and sentenced to sixty-one years in jail.[12]

The Indiana Supreme Court found no violation of Zanders’ Fourth Amendment rights because he had no expectation of privacy in his CSLI under the third-party doctrine.[13] The third-party doctrine holds that one waives their Fourth Amendment right to privacy if they voluntarily furnish information to a third party.[14] Applying this doctrine, the Indiana Supreme Court joined the Fourth, Fifth, Sixth, and Eleventh Circuits as the majority approach to CSLI and cell data.[15] Only the Third Circuit has explicitly rejected this stance.[16]

The Majority Approach and a Cautious Supreme Court

The Indiana Supreme Court identified two cases to justify application of the third-party doctrine to CSLI.[17] In U.S. v. Miller, the Supreme Court held that checks deposited into a bank account did not receive Fourth Amendment protections because checks are not “confidential communications,” but rather “negotiable instruments to be used in commercial transactions” generated during the ordinary course of business.[18]

The Supreme Court held in Maryland v. Smith that there was no legitimate expectation of privacy in the numbers a person dials from their telephone.[19] The Court rationalized that a privacy expectation in digits actively conveyed to a phone company is “not one that society is prepared to recognize as ‘reasonable.’”[20] In the forty years since Miller and Smith, however, the Supreme Court has articulated the need for a more modern approach to Fourth Amendment protections.[21]

In U.S. v. Katz, the Supreme Court held that warrantless electronic tracking of a phone booth conversation was an unconstitutional infringement on Fourth Amendment rights. The Court reasoned that privacy rights are fundamentally intended to protect people rather than simply safeguard places against government intrusion.[22] In 2012, the Supreme Court held in U.S. v. Jones that the warrantless use of a GPS tracker on a car was a Fourth Amendment violation, noting that the GPS signal could trace the exact movements of the defendant with pinpoint accuracy.[23] Two years later, in Riley v. California, the Supreme Court gave significant weight to Justice Sotomayor’s Jones concurrence in deciding that police had violated Fourth Amendment rights where an arresting officer, proceeding without a warrant, searched through the defendant’s cell phone.[24]

As the Zanders decision demonstrates, courts are using doctrines that were created for decades-old technology and applying it to modern analogues. The majority approach on the applicability of the third-party doctrine to CSLI and cell phone data has become increasingly unworkable. While the Court forty years ago was willing to find isolated, transactional interactions covered under the third-party doctrine, the dispositive question is whether that remains so today.

The Prevalent Role of Technology Today

Ninety-five percent of Americans own a cell phone.[25] Seventy-two percent of Americans are within five feet of their cellphone at any given time.[26] Twelve percent even admit to using a cell phone in the shower.[27] Cell phone usage has ossified into such an inextricable part of modern daily life that the Supreme Court recently quipped that cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[28] This is a far cry from the kind of phone the Smith court described. Indeed, by invoking a “phone”, one could “just as easily be [speaking of] cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”[29]

It therefore comes as no surprise that investigators and police aggressively use warrantless cell phone surveillance with “little or no court oversight.”[30] Cell phone companies are turning over data and records to law enforcement tens of thousands of times every year.[31] Professional organizations and media have expressed an increasing level of concern at the pervasive use of cell phone surveillance.[32] The central role that technology plays in modern life and the privacy implications of digital surveillance have more recently been noted by the Supreme Court.[33]

The Need for Reform

In constructing the third-party doctrine, it is essential that courts retain a steadfast commitment to the degree of protection established by the Fourth Amendment at the time of its drafting.[34] An increasing societal reliance on telephonic communication led the Court to expand Fourth Amendment protections from a property-centric notion of privacy to an individual-centric understanding, noting that the Fourth Amendment’s underpinning is to “protect people, not places.”[35] By emphasizing society’s reliance on technology, the Court expanded the basic Fourth Amendment protections to include a person’s “reasonable expectation of privacy,” both subjectively as well as a what society is prepared to recognize as reasonable.[36]

By broadly applying the third-party doctrine, the majority of circuits are failing to contextualize the role of technology in society’s expectation of privacy.[37] Justice Sotomayor presciently warned against the dwindling privacy protections afforded modern society. Her concurring opinion in Jones argued that the cumulative effect of mass location data collection allows government entities to “mine” the data of individuals. The ability to mine personal data allows the government to “ascertain, more or less at will, [a person’s] political and religious beliefs, sexual habits, and so on.”[38]

The Supreme Court should embrace the call to reform. Justice Sotomayor’s concurring opinion stated that “fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” as “[t]his approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”[39] Given the pervasive use of digital technology, cellphones should hold equal—if not more—Fourth Amendment protection than one’s home.[40]

The third-party doctrine pivots on the voluntary act of turning information over to the third party.[41] However, one cannot be said to give their electronic communications completely of their own free will. To do so would be to fully discount the enourmous economic and social pressure surrounding digital communication.[42] Furthermore, the majority approach holds that possessing a rudimentary understanding of how the technology one uses suffices to establish a ‘voluntary submission’ to a third party.[43] This presumption, however, leads to absurd results. The average consumer is unlikely to have even a cursory level of understanding of how technology function, especially as the level of technological sophistication increases.[44] The net effect is to hold that the level of constitutionally protected privacy rights decreases as the sophistication of technology increases. The majority position to the third-party doctrine would allow this kind of erosion solely predicated on a blanket presumption that consumers have some scintilla of an understanding of how consumer technology works. This absurd pirouette around a fundamental constitutional guarantee is also a relatively avoidable one. The Supreme Court should require law enforcement to proceed as the drafters of the Fourth Amendment themselves required: with a warrant.[45]

Conclusion

Holding course in its current trajectory, the exception threatens to eclipse the rule. Zanders, has relied on precedent that was articulated for a specific time and place. The third-party doctrine under Smith and Miller must be recalibrated to what society is prepared to consider reasonable. Recent developments in the Supreme Court have hinted at a realization that Fourth Amendment precedent from forty years ago is no longer applicable to the modern era. With an increasingly interconnected world and an expanding police reliance on cell phone surveillance, virtually every aspect of a person’s digital life is susceptible to the third-party doctrine.

The Supreme Court should therefore either fundamentally re-shift the third-party doctrine to better reflect society’s privacy expectations in the digital age or dissolve it completely. The current application of the third-party doctrine renders nearly every aspect of modern life exempt from the fundamental guarantees of the Fourth Amendment and no longer reflects a level of privacy that an interconnected world has come to expect. The price of admission to modern society should not be a waiver of one’s constitutional right to privacy.

[1] U.S. Const. amend. IV.

[2] Katz v. U.S. 389 U.S. 347, 360 (1967).

[3] The Fourth Amendment states that “no warrants shall issue, but upon probable cause . . .”  U.S. Const. amend. IV. A warrant is, however, not required in instances of exigent situations where there is great risk under severe time constraints. See, e.g., Kentucky v. King, 563 U.S. 452, 459-60 (2011).

[4] Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

[5] Riley v. California, 134 S. Ct. 2473, 2490-2492 (2014) (describing cell phone apps and remote cloud storage); U.S. v. Ulbricht, 858 F.3d 71, 96 (2d Cir. 2017) (describing Internet Protocol addresses as third party information); U.S. v. Graham, 824 F.3d 421, 432 (4th Cir. 2016) (“information relating to the sending and routing of electronic communications does not receive Fourth Amendment protection.”)

[6] Zanders v. State, 73 N.E.3d 178, 180 (Ind. 2017).

[7] Id.

[8] CSLI, in its most rudimentary form, is “best understood as an umbrella term that encompasses a broad range of locational data collected by [cell providers] in providing service to cell phone users.” Zachary Ross, Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Phone Data, 35 Cardozo L. Rev. 1185, 1192 (2014).

[9] Zanders, 73 N.E.3d at 180.

[10] Id.

[11] Id. The CSLI used at trial was the cell phone’s historical data showing the exact location where Zanders’ cell phone connected to adjacent cell towers immediately before and after placing a call.  Id. at 182.

[12] Id. at 182.

[13] Id. at 179.

[14] Id.

[15] Id. at 184.

[16] The Third Circuit argued that CSLI itself cannot be said to have been voluntarily given, because the precise nature of the transaction, storage, and logging of the data is unlikely to be known to the user. In re Application of U.S. for an Or. Directing a Provider of Elec. Commun. Serv. to Disclose Records to Govt., 620 F.3d 304, 317 (3d Cir. 2010).

[17] Zanders, 73 N.E.3d at 183-84.

[18] U.S. v. Miller, 42 U.S. 435, 443 (1976).

[19] Smith v. Maryland, 442 U.S. 735, 735 (1979).

[20] Id.

[21] See, e.g., U.S. v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring).

[22] Katz v. U.S., 389 U.S. 347, 351 (1967).

[23] Jones, 565 U.S. 400, 411 (2017).

[24] Riley v. California, 134 S. Ct. 2473, 2490 (2014).

[25] Pew Research Center, Mobile Fact Sheet, Jan. 12, 2017, http://www.pewinternet.org/fact-sheet/mobile/.

[26] Harris Interactive, 2013 Mobile Consumer Habits Study 2 (June 2013).

[27] Id. at 3.

[28] Riley, 134 S.Ct. at 2484.

[29] Id. at 2489.

[30] Eric Lichtblau, Police Are Using Phone Tracking as a Routine Tool, N.Y. Times, March 31, 2012, http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article.

[31] Mary Anne Franks, Democratic Surveillance, 30 Harv. J.L. & Tech. 425, 456 (2017).

[32] See, e.g., Sarah Robert, American Civil Liberties Union, Court Says No GPS Tracking? How About Cell Phone Tracking? April 6, 2012, https://www.aclu.org/blog/national-security/court-says-no-gps-tracking-how-about-cell-phone-tracking. The ACLU has initiated and continually updated a public records request campaign to highlight the pervasive use of cell phone tracking.

[33] See, e.g. U.S. v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring); Riley v. California, 134 S. Ct. 2473 (2014).

[34] Jones, 565 U.S. at 411.

[35] In articulating the “people not places” expansion of Fourth Amendment protections, the Court warned that “[t]o read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.” Katz v. U.S. 389 U.S. 347, 351-52 (1967).

[36] Id. at 360.

[37] Id. at 352.

[38]Sotomayor also noted that the cumulative effect of mass surveillance could have a chilling effect on other fundamental rights, such as association and expressive freedoms. Jones, 565 U.S. at 416.

[39] Id. at 417.

[40] “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.” Id.

[41] Zanders, 73 N.E.3d at 183.

[42] Mary Anne Franks, Democratic Surveillance, supra note 31 at 437-40.

[43] Id. at 183.

[44] Rebecca Lipman, The Third Party Exception: Reshaping an Imperfect Doctrine for the Digital Age, 8 Harv. L. & Pol’y Rev. 471, 481 (2014).

[45] U.S. Const. amend. IV.

 

Drones, Damages, and Property Rights

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

Development in technology has led to a recent explosion in the private and commercial use of small unmanned aircrafts (SUAs or “drones”). These small, versatile, stealthy machines have thrust privacy concerns back into the limelight. However, almost the entire field of regulating drone flight is preempted from state and local regulation.[1] With some creativity and the existing Supreme Court precedent regarding “superadjacent airspace” above private land,[2] it might be possible for Ohio to utilize property rights to directly address the drone privacy issue.

Federal Law and “Superadjecent Airspace”

Laws and regulations that are directly applicable to drone flights are almost entirely federal. Title 49 gives the United States “exclusive sovereignty of the airspace of the United States.”[3] The FAA is the executive agency charged with setting all standards for flight safety.[4] However it is not entirely clear the FAA has the authority to regulate drones. [5] The Appellate Court for the District of Columbia (“D.C. Circuit”) recently read the FAA Modernization and Reform Act of 2012 (“the Act”) to forbid FAA regulations on drone use.[6] The portion of the Act the court referred to was §336(a) which states, “[T]he [FAA] may not promulgate any rule or regulation regarding a model aircraft.”[7] The court read “model aircraft” to include drones, thus forbidding the FAA from regulating drone use. Additionally, the Supreme Court in U.S. v. Causby decided the entire airspace above the United States, as a practical matter, cannot be the exclusive sovereignty of the United States. [8]

In Causby, the Supreme Court provided a private land owner claim to some airspace above his land.[9] Mr. Causby, a chicken farmer, sued the government because military planes would fly over his land when taking off and landing on adjacent land. These planes would pass over Mr. Causby’s land at an altitude of approximately 83 feet. These airplanes were causing the farmer’s chickens to die, thereby making his land unsuitable for farming. The Supreme Court in evaluating Causby’s claim stated the “navigable airspace which Congress has placed in the public domain is ‘airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’”[10] At the time, the lowest minimum safe altitude for aircraft was designated to be 300 feet.[11] This put the planes flying at 83 feet over Mr. Causby’s land outside the publicly navigable airspace.[12] The Court continued, “[A]ir space is a public highway. Yet it is obvious that the landowner . . . must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected.”[13] The Court labeled this area of airspace as “superadjacent airspace” and stated that landowners have a claim to it.[14] The Court characterized invasions of this airspace as similar to invasions of the surface.[15] The Court explicitly refrained from setting a precise line between public and private airspace.[16] However, clearly U.S. sovereignty over the airspace is limited and private land owners have some claim to the airspace.[17]

State Law Focus on Ohio

Private drone use is growing rapidly[18] and state legislatures are trying to keep up despite their limited ability to directly regulate drone flight.[19] This new area of technology has led to a vociferous public outcry regarding many concerns including personal privacy, safety, and property rights.[20] This concern is not unfounded. Drones can be equipped with a variety of attachments,[21] resulting in a multitude of beneficial and nefarious uses.[22] States have responded with legislation attempting to address concerns without directly regulating drone flights while simultaneously trying to leave room for beneficial drone use.[23]

As of this article, Ohio has only one law that regulates the use of drones. [24] However, Ohio does have a Bill proposed to address and regulate the use of drones in police investigations.[25] The bill would require any use of drones in police investigations to be accompanied by a warrant. [26] Furthermore, Ohio courts have adopted the Supreme Court’s ruling in Causby.[27] Thus, under Ohio law there is the same “superadjacent airspace” regarding private land ownership.[28] Additionally, Ohio courts have mirrored the rulings of other courts regarding aerial observations, holding that if the aircraft is in public airspace there is no privacy infringement.[29]

Ohio could set property rights regarding “superadjacent airspace” without running afoul of Title 49 preemption. It is settled law that an individual can fly in public airspace and observe an individual within their home and curtilage without violating any privacy or property laws.[30] However, a drone hovering at 400 feet is unlikely to cause any concern.[31] The biggest issue regarding drones is their ability to fly between houses and hover outside windows.[32] Thus, Ohio could establish an area of private property, subject to trespass laws, in this “superadjacent airspace” that is well below the current federal minimum safe altitude for flight. By setting a limit on private airspace well below the minimum safe altitude, it is highly unlikely any federal court would find a conflict between this and FAA regulations. First, the Supreme Court has already carved out a claim for land owners to “superadjacent airspace” above private land.[33] Second, it is unlikely a different type of aircraft would be used to hover ten feet above a building for reconnaissance such as the helicopter in Riley, which flew over at 400 feet.[34] If such an incident with another type of aircraft were to occur, it is unlikely a federal court would rule the incident to be legal without a search warrant.[35] Additionally, there would still be several hundred feet of airspace for drones to operate in between the airspace subject to state trespass claims and the maximum altitude limitation of 400 feet set by the FAA.[36]

Utilizing Property Rights to Address Drones

While establishing trespass claims to a designated amount of airspace above Ohioan’s land would be a good first step, additional measures would need to be taken. For example, unless there is a presumption of damages resulting from drones trespassing into a person’s private air space, it would very difficult to prove injury or harm.[37] Perhaps a drone trespass law could include a presumed invasion of privacy that could be rebutted by the drone operator. Should a presumption of damages be deemed inappropriate, a trespass claim still provides some protection; in Ohio trespass claims can be used as a defense to premises liability and thus a trespassing law would also provide land owners some additional protection.[38]

Another aspect that needs to be addressed is the inability to identify a drone’s operator.[39] It would be impossible for an individual to protect their rights through trespass laws if they cannot name a defendant. Thus, another piece of necessary legislation is a requirement enabling remote identification that would allow others to identify a drone and its user. However, the FAA already requires drones to be equipped with an identifying sign[40] and it appears likely they will develop a more technologically advanced requirement in the near future.[41]

Conclusion

The federal government will preempt almost any state law that attempts to directly regulate drone flights.[42] However, as long as future state property laws are reasonably crafted, there should be no conflict with federal law.[43] First, these laws need to create designated private airspace within “superadjacent airspace”. Second, that designated airspace should be subject to trespassing laws. Third, a presumption of damages for when a drone is flown into this private airspace would add teeth to these new laws. Liability for damages would help insure those that fly drones are conscientious about where they fly their drones.

[1] Abdullad v. American Airlines, Inc., 181 F.3d. 363, 367 (3d Cir. 1999). See also Command Helicopters, Inc. v. City of Chicago, 691 F. Supp. 1148, 1151 (N.D. Ill. 1988).

[2] United States v. Causby, 328 U.S. 256, 265 (1946).

[3] Sovereignty and use of airspace 49 U.S.C.A. § 40103(a)(1) (LexisNexis 2017)

[4] Sovereignty and use of airspace 49 U.S.C.A. § 40103(b)(1) (LexisNexis 2017)

[5] Taylor v. Huerta, 856 F.3d 1089, 1090 (D.C. Cir. 2017) (striking down an FAA regulation requiring drone users to register with the FAA).

[6] Id. at 1092.

[8] Causby, 328 U.S. at 264.

[9] Id. at 266.

[10] Id. at 260. (citing 49 U.S.C. § 180, U.S.C.A. § 180).

[11] Id. at 264. (citing Civil Air Regulations, Pt. 60, § 60.350-60.3505).

[12] 328 U.S. 256, 264 (1946).

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 266.

[17] Id. at 268.

[18] Fed. Aviation Admin., FAA Aerospace Forecast Fiscal Year 2017-2037, at 31, (Advisory Circular 2017-2037) (stating there are over 1 million drone operators in the U.S. and a conservative prediction estimates more than 3 million operators in 2020).

[19] Mich. Comp. Laws Serv. § 259.311 (LexisNexis 2017) (acknowledging and explicitly refraining from affecting Federal Preemption).

[20] Cox Media Group National Content Desk, Need to shoot down a drone? Now you can buy ammo designed to take them down, CBS, Aug 25, 2015. Accord WKRN-TV, Father, son caught by surprise as drone shot out of sky, NBC, May 27, 2016.

[21] Huerta v. Haughwout, No. 3:16-cv-358, 2016 U.S. Dist. LEXIS 92866, at *1-2 (D. Conn. July 18, 2016) (discussing two Youtube videos showing a drone with a gun and another with a flamethrower attachment).

[22] Scott Mayerowitz, Drones’ future still up in the air U.S. REGULATORS SAY THEY WANT TO SLOWLY EASE DRONES INTO AIRSPACE – DRONES: Potential includes checking power lines, pinpointing water needs of farms, Free Lance Star, Jan. 10, 2015. But see Laura Bischoff, Drone used to drop drugs to Ohio inmates part of worldwide problem, Dayton Daily News, Aug. 6, 2015, at A1.

[23] Utah Code Ann. § 76-9-308 (LexisNexis 2017) (making it illegal to harass livestock with drones but leaving exempt livestock owners and employees of the state).

[24] Ohio Admin. Code 1501:31-15-02 (2017) (Making it illegal to “hunt, shoot, shoot at, kill, take or attempt to take any wild bird or wild quadruped with the use of aerial drones.”).

[25] Ohio S.B. No. 60, 132nd Gen. Assemb., 2017-2018 Sess. (Ohio 2017)

[26] Id. Legislators included an emergency exception, stating “[I]f a warrant could not be obtained with due diligence in time to prevent the immediate danger of death or serious physical injury.”

[27] Vill. of Willoughby Hills v. Corrigan, 29 Ohio St. 2d 39, 49, 278 N.E.2d 658, 664 (1972).

[28] Id.

[29] See State v. Littell, 2014-Ohio-4654, ¶ 17, 21 N.E.3d 675, 680 (Ohio Ct. App.); California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 1813, 90 L. Ed. 2d 210 (1986).

[30] Florida v. Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989). See also California v. Ciraolo, 476 U.S. 207, 209, 106 S. Ct. 1809, 1810 (1986).

[31]Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989) (finding lawful a helicopter observation of marijuana plants on private property from altitude of 400 feet without a warrant).

[32] Miss. Code Ann. § 97-29-61 (2017) (including the use of drones in voyeurism statute). Accord LA. STAT. ANN. § 14:283 (2017).

[33] Abdullah, 181 F.3d 363, 371 (3d Cir. 1999). See also City of Cleveland v. City of Brook Park, 893 F. Supp. 742, 750-751 (N.D. Ohio 1995) (“If local ordinance has the effect of directly regulating flight operations, federal law will preempt it.”). But cf. Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996) (“If the FAA does not issue uniform regulations regarding particular types of flights, local communities can enact ordinances regarding them.”).

[34] Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989).

[35] Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989) (finding that unless interfering with the owners use of the land, considering factors such as undue noise, wind, dust, or threat of injury, an aerial observation from a helicopter at 400 feet is permissible).

[36] 14 C.F.R. § 91.119 (“[T]he aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.”).

[37] Novy v. Ferrera, 2014-Ohio-1776, ¶ 47 (“in an action for trespass, if trespass is shown, the plaintiff is always entitled to some damages, even though they may be nominal.”). But see Apel v. Katz, 1998-Ohio-420, 83 Ohio St. 3d 11, 23, 697 N.E.2d 600, 609 (“The long-standing rule in Ohio is that “[e]xemplary or punitive damages may not be awarded in the absence of proof of actual damages.”).

[38] Ohio Rev. Code Ann. § 2305.402 (“No duty of care owed to trespasser except to refrain from willful, wanton, or reckless conduct.”).

[39] Taylor v. Huerta, 856 F.3d 1089, 1090 (D.C. Cir. 2017) (striking down an FAA regulation requiring drone users to register with the FAA).

[40] 14 C.F.R. § 45.11 (requiring fireproof identification plate, referenced in Federal Aviation Administration, Advisory Circular AC 45-2E (2015)).

[41] Fed. Aviation Admin., Overview of RTCA & Federal Advisory Committees DAC Meeting (2016) (discussing remote identification of drones during Drone Advisory Committee meeting).

[42]Abdullad, 181 F.3d. 363, 367. See also Command Helicopters, 691 F. Supp. 1148, 1151.

[43] Arizona v. United States, 567 U.S. 387, 427, 132 S. Ct. 2492, 2516–17, 183 L. Ed. 2d 351 (2012) (stating Arizona can have its own immigration policy so long as it does not conflict with federal law).

The End of Legislator-Led Prayers?

Amona Al-Refaei, Associate Member, University of Cincinnati Law Review,

The Establishment Clause of the First Amendment prohibits the government from establishing a national religion or unduly favoring one religion over another.[1]  However, the Supreme Court permits the practice of state actors beginning legislative meetings with prayers by guest ministers.[2] The Supreme Court recognized these prayers do not have to be nonsectarian and prayer in legislative meetings should be interpreted by referencing to historical practices and understandings.[3] In its most recent opinion on the issue, the Supreme Court in Town of Greece, held legislative prayers did not violate the Establishment Clause even though the majority of ministers were Christian because the town was not required to search beyond its borders for non-Christian ministers to achieve religious balancing.[4] This year, the Fourth Circuit in Lund v. Rowan County distinguished minister-led prayer from legislative-led prayers.[5] The Fourth Circuit held legislative-led prayer violated the Establishment Clause because the prayers placed Christianity on a higher plane than other faiths[6] and urged attendees to embrace Christianity[7], which demonstrated a clear effort to promote religious observance in the public.[8] However, the Sixth Circuit in Bormuth v. Cnty. Of Jackson held the prayer practice of the board of commissioners fit within the tradition followed by Congress and state legislatures, and did not violate the Establishment Clause.[9] The Sixth Circuit’s decision is more consistent with the Establishment Clause because it protects the traditional practice of beginning legislative meetings with prayer and does not over broadly apply the Establishment Clause.

Lund v. Rowan County

Each Rowan County Board meeting began with a prayer composed and delivered by one of the commissioners.[10] The chairperson asked everyone in attendance to stand and bow their heads.[11] A commissioner asked the community to join him in worship by stating “Let us pray,” “Let’s pray together,” or “Please pray with me.”[12]  There is a long-standing custom that the opportunity to lead the prayer is rotated only among Board members.[13] Moreover, the prayers are unmistakably Christian in content, with over 97% of the Board’s prayers mentioning “Jesus,” “Christ,” or the “Savior.”[14] No other religion was represented.[15] Some prayers implied Christianity was superior to other faiths and Board members seemed to implore attendees to accept Christianity.[16]

The Fourth Circuit concluded the identity of the prayer-giver is relevant to the constitutional inquiry.[17] The court did not use a formal test, but rather held Establishment Clause questions are matters of degree, allowing legislative prayer to be acceptable in some circumstances and unconstitutional in others.[18] The Fourth Circuit stated the Supreme Court has not defined the precise boundaries of the Establishment Clause.[19] Moreover, the historical principles articulated by the Supreme Court do not direct a particular result and courts must conduct a fact-sensitive review of the prayer practice.[20] The court emphasized the elected members of the board prevented anyone else from offering invocations.[21] The court also found it troubling that the only recourse for members of other faiths, is to elect a commissioner with similar religious views.[22] The court feared that failure to follow the majority faith could be a campaign issue, which could deter members of a minority faith from seeking office.[23] The Fourth Circuit did not use a formal test to complete its constitutional analysis, but based its holding on the circumstances of the legislative prayers in the county.[24] The accumulation of the facts led the court to believe “the county simply went too far.”[25]

Bormuth v. County of Jackson

The Jackson County Board of Commissions began each of its monthly meetings with Commissioner-led prayers.[26] The Board’s chairman typically requested commissioners and the public to “rise and assume a reverent position.”[27] Then one of the commissioners offered a prayer.[28] Each elected Jackson County Commissioners rotated the opportunity to open a session with a short invocation based on the dictates of their own conscience, regardless of the commissioner’s religion.[29] The Sixth Circuit court held the prayer practice fit within the tradition followed in Congress and state legislatures recognized by the Supreme Court.[30] The court cited Town of Greece stating legislative prayer “has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of [the Supreme Court’s (and Sixth Circuit’s)] sessions.”[31]

The Sixth Circuit court held the Lemon test inapplicable to legislative prayer cases and using it would “rewrite thirty-plus years of Supreme Court jurisprudence.”[32] The court emphasized the Supreme Court sustained legislative prayer without subjecting the practice to any of the formal tests traditionally used.[33] Instead, the Sixth Circuit followed the Supreme Court’s analysis in Marsh and Town of Greece to look at the prayers through history’s lens.[34] The court focused on this historical grounding and Supreme Court ruling to conclude the practice of legislative prayer is consistent with the Framers’ understanding of the Establishment Clause.[35]

Why the Identity of the Prayer-Giver is Not Outcome Determinative

In creating the Establishment Clause, the Founders did not intend to prohibit an expression of religious devotion by legislators.[36] Therefore, the Establishment Clause should not prohibit local governments from utilizing a practice that has been significant throughout the nation’s history and tradition. As the dissent notes in Lund, there are a number of states and territories that have enacted legislation to recognize and protect the historical practice of lawmaker-led prayer.[37] Moreover, the federal government seems to validate lawmaker-led prayer as both houses of Congress allow members to deliver an opening invocation.[38]

The most compelling argument in support of legislator-led prayers is the deep historical roots that legislative prayer has in the nation.[39] The Continental Congress began its sessions with a prayer by a paid chaplain, and the First Congress authorized the appointment of paid chaplains to start each session.[40] This history shows the Founders did not view legislative prayers as a violation of the Establishment Clause.[41]. The Supreme Court held the purpose of legislative prayer is to remind legislators of a higher purpose and to express a common aspiration to establish a peaceful society.[42] Additionally, these prayers have historically been permitted because adult citizens can tolerate prayer delivered by a person of a different faith.[43]

When prayer opportunities are limited to elected officials, it should not necessarily change the outcome of the constitutional analysis. The Sixth Circuit was correct in noting neither Supreme Court opinion restricts who may give prayers in order to be consistent with historical practice.[44] In Lund, the court was incorrect to find legislative prayer is unconstitutional when the ability to lead the prayer is limited to legislators. Such a holding would place too much weight upon the prayer-giver, thereby leaving the words of the prayer almost irrelevant. Following Lund, a prayer led by a hired minister would be constitutional, but it would be unconstitutional if a legislator led the same prayer.

Finally, there is no violation of the Establishment Clause even when the prayers are based on one religion. Although some citizens may be offended if legislator-led prayers consist largely, or solely, of Christian ideology, the Supreme Court stated creed-specific prayers alone do not violate the First Amendment.[45] There should not be an Establishment Clause issue as long as the legislative body does not have a policy of discriminating against potential candidates based on their religious beliefs. Additionally, requiring legislative prayers to be nonsectarian would require legislatures to censor religious speech.[46]

Simply exposing individuals to prayers they would rather not hear does not make legislator-led prayers coercive. The purpose of legislative prayers accepted by the Supreme Court indicates the audience of these prayers is the legislatures themselves. Moreover, asking the public to rise for the prayer does not make the prayers coercive because those in attendance can simply refrain from participating by remaining seated. But, under some circumstances legislative prayers may become coercive. For example, legislative prayer would likely be unconstitutional if members of the public who do not to participate in the prayers were not allowed to voice their concerns or opinions to their legislative representatives.

Conclusion

Legislators outside of the Fourth and Sixth Circuits may now be concerned about beginning meetings with prayers. Fortunately, the Sixth Circuit’s opinion is more consistent with the Establishment Clause and Supreme Court precedent. The Sixth Circuit followed the Supreme Court’s historical view of legislative prayer and its purpose, whereas the Fourth Circuit used a fact sensitive analysis. The Fourth Circuit’s interpretation provides too much discretion to determine the constitutionality of a practice accepted by the Founders and protected by the Supreme Court.

[1] The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” USCS Const. Amend. 1.

[2] Town of Greece v. Galloway, 134 S. Ct. 1811, 1815 (2014).

[3] Id. at 1820. “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783, 786 (1983). See also, “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Town of Greece, 134 S. Ct. at 1819.

[4] Town of Greece, 134 S. Ct. at 1824.

[5] Lund v. Rowan County, 863 F.3d 268, 276 (4th Cir. 2017).

[6] Id. at 287.

[7] Id. at 285.

[8] Id. at 287.

[9] Bormuth v. Cnty. of Jackson, No. 15-1869, 2017 U.S. App. Lexis 17174, at *3 (6th Cir. Sep. 6, 2017).

[10]Lund, 863 F.3d at 272.

[11] Id.

[12] Id.

[13] Id. at 273.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 280.

[18] Id. at 280.

[19] Id.at 275

[20] Id.

[21] Id. at 280

[22] Id.

[23] Id.

[24] Id. at 281. The legislative-led prayers were unconstitutional because only commissioners invoked the prayers, the invocations drew exclusively on Christianity and sometimes served to advance that faith, the commissioners invited attendees to participate, and the local government setting.

[25] Id. at 291.

[26] Bormuth, No. 15-1869, 2017 U.S. App. Lexis 17174, at *4.

[27] Id.

[28] Id.

[29] Id.

[30] “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783, 786 (1983). See also, “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Town of Greece, 134 S. Ct. at 1819.

[31] Town of Greece, 134 S. Ct. at 1825.

[32] Bormuth, No. 15-1869, 2017 U.S. App. Lexis 17174, at *46.

[33] Id.

[34] Id.

[35]Id. at *16-17.

[36] Town of Greece, 134 S. Ct. at 1833.

[37] Lund, 863 F.3d at 309.

[38] Id.

[39] “From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” Marsh, 463 U.S. at 786.

[40] Id. at 787-88.

[41] Id. at 787. (citing 1 J. of the Continental Cong. 26 (1774); 2 J. of the Continental Cong. 12 (1775); 5 J. of the Continental Cong. 530 (1776); 6 J. of the Continental Cong. 887 (1776); 27 J. of the Continental Cong. 683 (1784); 1 Anson Phelps Stokes, Church and State in the United States 448–450 (1950)).

[42] Town of Greece, 134 S. Ct. at 1818.

[43] Id. at 1823.

[44] Bormuth, No. 15- No. 15-1869, 2017 U.S. App. Lexis 17174, at *32.

[45] Town of Greece, 134 S. Ct. at 1821.

[46] “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Id. at 1822.

Who’s Eligible for Overtime?

Alexander Foxx, Associate Member, University of Cincinnati Law Review

 The Department of Labor exempts an employee in a “bona fide administrative capacity” from overtime compensation.[1] An exempt employee (1) is paid more than $455 per week, (2) is in a management or business operations role, and (3) exercises discretion and independent judgment in the role. [2] Courts are split in their interpretations of requirements (2) and (3). The issue for the federal circuit courts is whether bank underwriters qualify for overtime exemption.[3]

Currently, the Ninth and Second Circuits support an interpretation of overtime rules that entitles underwriters to overtime.[4] The Sixth Circuit favors an interpretation that underwriters are not entitled to overtime. The Sixth Circuit’s view, while troubling public policy, is the legally proper view.

While the circuits do not extend their rulings beyond the underwriters, their holdings serve as a signal for how overtime of similar job positions—namely, office jobs with little corporate power, but considered administrative positions—may be evaluated. This could impact a large portion of the economy. For example, franchise managers could be impacted.  Regardless of these considerations, I maintain that the Sixth Circuit’s view is the legally correct view and that underwriters are exempt from overtime.

The Sixth Circuit Approach

In Lutz v. Huntington Bancshares, Inc. the Sixth Circuit determined that underwriters were bona fide administrative employees and were exempt from overtime pay.[5] The court found the nature of the work that underwriters performed was critical to the overtime determination. A role that is fundamentally a management position will likely qualify for overtime exemption; a clerical or manual role, however, may entitle employees to overtime.[6] With this in mind, the Sixth Circuit opened its decision with a description of the underwriter position.[7]

The Sixth Circuit ruled the second prong of the overtime rule was fulfilled. The Court maintained that bank guidelines allow underwriters significant autonomy and that underwriters are bona fide administrative employees exempt from overtime under the second prong of the Department of Labor rule. The Court noted that underwriters use “judgement and experience” in granting loan modifications and interpreting loan applications objectively.[8] This view underpins the Court’s conclusion that underwriters “assist in the running and servicing of the Bank’s business by making decisions about when Huntington should take on certain kinds of credit risk,” fulfilling the second prong of the Department of Labor’s exemption requirement.[9] The Court differentiated the administrative nature of underwriters by distancing them from production-centered positions—positions which are typically overtime eligible.[10] The Court noted that the underwriters do not sell a product, but perform analyses similar to financial analysts, who are exempt from overtime compensation.[11] Given these factors, the Court concluded the second prong of the labor department rule was satisfied.

The Sixth Circuit then determined the third prong of the Department of Labor rule was satisfied because underwriters are permitted to exercise a large amount of judgment in their position. The Court observed that the bank guidelines imposed on underwriters allows for significant discretion in determining the approval of a loan application.[12] Given the discretion allowed by the guidelines, underwriters must “exercise independent judgment” in their position.[13]

The Sixth Circuit determined that underwriters were (1) administrative employees and (2) exercised professional judgment and discretion.[14] Therefore underwriters fulfilled the second and third prongs of the Department of Labor rule and exempted from overtime pay.

The Ninth and Second Circuits

In Davis v. J.P. Morgan Chase & Co. the Second Circuit differed from the Sixth Circuit, concluding that the second and third prongs were not satisfied because underwriters had little autonomy and managerial authority. The Second Circuit maintained that the guidelines promulgated by the bank provided a narrow route “in order to produce a yes or no decision” regarding the loan application.[15] This language indicated that the Second Circuit viewed bank guidelines as authoritative rules that bound the independent judgement of underwriters and subjected them to the production standards of the bank. The Second Circuit maintained that underwriter positions were not administrative positions, but production positions.[16] The Court noted that it is the primary duty of underwriters to “sell loan products under the detailed directions of the Credit Guide.”[17] Viewing underwriters as producers who (1) did not exercise independent judgement and (2) did not contribute to management decisions, the Second Circuit found that the overtime exemption requirements had not been met; neither the second or third prongs of the rule were fulfilled.[18]

The opinion of the Ninth Circuit in McKeen-Chaplin v. Provident Sav. Bank (the most recent of the three cases) closely paralleled the decision of the Second Circuit. The Ninth Circuit further expounded upon the difference between production and administrative roles. Administrative positions guide the “overall course or policies”[19] of the business, while production roles are concerned with the “day-to-day” operations of necessary business tasks.[20] Only administrative roles qualified for overtime exemption under the Department of Labor rule. In examining the nature of the underwriter position, the Ninth Circuit noted that underwriters are narrowly confined to the risk profile assigned to them by the bank and therefore are not administrators who exercise independent judgment.[21]

The Sixth Circuit Decision is Legally Proper, but Troubling Policy

The Sixth Circuit correctly classifies underwriters as overtime exempt employees. The position of underwriter is a role necessary to the management of bank business operations and therefore meets the second prong of the Department of Labor’s rule. Underwriters are instrumental to the revenues of lending institutions. Without underwriters, borrowers cannot be examined properly, and if borrowers cannot be examined properly, loans will likely default at a much higher rate. In short, underwriters make sure that loans are only given to people who will pay the loan back with interest. Given that underwriters are an essential part of the business operations of a bank, but do not work directly in a “production”[22] role[23] (this role falls to the loan originator)[24], it is a natural conclusion that they guide the business and operations of the bank. Opposition may argue that underwriters are a “production” role and thereby entitled to overtime under the McKeen decision—analogous to a factory line worker.[25] This view ignores the fact that underwriters do not produce loans—this task falls to the loan originator,[26] an individual who works in a different capacity (and usually a different office or city) than the underwriter. The position of underwriter is an administrative position that satisfies the second prong of the Department of Labor Rule.

The position of underwriter also completes the third prong of the Department of Labor’s rule. The third prong requires an exempt employee to demonstrate discretion or independent judgment in his or her role. Underwriters are evaluating the ability of individuals to pay back loans, which, at base, is a determination of an individual’s trustworthiness. An evaluation of trustworthiness cannot be undertaken without independent judgment. The opposition may argue that the guidelines provided to underwriters eliminate this judgment. This view ignores that underwriters are granted wide discretion within these policies and may be granted exceptions to these policies.[27] Underwriters therefore satisfy the third prong of the Department of Labor’s rule.

Despite the fact that underwriters do not seem to be eligible for overtime under the Department of Labor rule, the Sixth Circuit’s ruling raises troubling public policy questions. Namely, poor compensation of valuable employees should not be encouraged. If an employee is working over 40 hours per week in an “administrative” position, the employee is likely performing valuable tasks for the business. It would seem appropriate that such employees are compensated at a level that would make the potential benefits of litigation seem small. In short, it would seem prudent if the banks paid their underwriters more so the employees do not feel pressured to sue.

The Sixth Circuit seems to concur that underwriters are an important piece of the lending process and that they exercise professional judgment on a regular basis. As such, it is troubling that such valuable employees feel the need to bring suit against their employer for more compensation. Compensation in the labor market should be addressed by an efficient market—the supply of a certain skillset will demand equivalent compensation. Efficient markets seem to fail in the case of underwriters. Underwriters are clearly valuable and necessary employees that perform a task that is not automatable. However, given this litigation, underwriters feel as though their compensation is not adequate for their skillset. This may indicate a market that is out of equilibrium.[28] While legally proper, a legal decision that supports the under-payment of employees and an inefficient market is troubling.

If employees feel they are adequately compensated for their skillset they will not feel the need to bring suit against their employer for overtime compensation. If the underwriters had been paid a salary that they considered fair, they likely would not have felt the need to bring suit—the cost of litigation would not have been outweighed by the marginal pay increase. Employees that feel fairly treated and fairly may sue their employer less—a court decision is unnecessary to reach this conclusion.

Conclusion

The circuit split regarding overtime pay has no resolution on the horizon, especially given recent political developments.[29] It is troubling that the legal status of overtime pay—an instrumental compensation component of the labor market—is so fluid. A ruling from the Supreme Court would not be remiss.

While the split persists, the Sixth Circuit decision should be viewed as the legally proper conclusion. The Sixth Circuit correctly recognizes underwriters as instrumental business administrators who exercise substantial professional discretion. However, if companies endeavor to compensate employees at a market rate this may moot overtime litigation and the Department of Labor rule and create the desired market equilibrium.

[1] 29 C.F.R. § 541.200(a).

[2] See Lutz v. Huntington Bancshares, Inc., 815 F.3d 988, 992 (6th Cir. 2016) citing 29 C.F.R. § 541.200(a).

[3] Lutz at 990; Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 530 (2d Cir. 2009); McKeen-Chaplin v. Provident Sav. Bank, 862 F.3d 847, 849 (9th Cir. 2017)

[4] An underwriter is an employee of a lending institution that determines if a loan should be granted to a prospective borrower.

[5] Lutz at 990.

[6] 29 C.F.R. § 541.200(a).

[7] Lutz at 990-991. Underwriters receive loan applications from loan originators (for example, the branch banker that fills out a residential mortgage application with a customer). Upon receipt, underwriters evaluate the application for accuracy and determine if the loan will be approved. In determining loan approval, underwriters are subject to the guidelines of their bank. These guidelines outline lending procedures and risk profiles and, in large part, determine whether the underwriter can approve the loan.

[8] See id.

[9] Id at 990.

[10] Id.

[11] Id at 995.

[12] Id at 997.

[13] Id.

[14] Id at 998.

[15] Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 534 (2d Cir. 2009).

[16] Id. at 535.

[17] Id. at 534.

[18] Id. at 537.

[19] McKeen-Chaplin v. Provident Sav. Bank, 862 F.3d 847, 851 (9th Cir. 2017) citing Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir. 2002) quoting Bratt v. Cty. of L.A., 912 F.2d 1066, 1070 (9th Cir. 1990).

[20] Id.

[21] McKeen at 852.

[22] Production: “often attributive :something not specially designed or customized and usually mass-produced.” Production, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/production.

[23] Id.

[24] Lutz at 990.

[25] McKeen at 852.

[26] Lutz at 990.

[27] Lutz at 991.

[28] That labor markets may not always be in equilibrium is not a new hypothesis to economists. One explanation that is posited, and could apply here, is “sticky wages.” This means that wages to not adjust in sync with labor shortages and surpluses. See Sticky Wages, Renee Haltom, Federal Reserve Bank of Richmond, https://www.richmondfed.org/publications/research/econ_focus/2013/q1/q1, accessed September 26, 2017.

[29]  Reuters, U.S. Judge Strikes Down Obama Administration Overtime Pay Rule, New York Times, https://www.nytimes.com/reuters/2017/08/31/us/31reuters-usa-overtime.html.

 

 

 

Cracked and Packed No More? A New Breed of Political Gerrymandering Litigation

Patrick Reagan, Associate Member, University of Cincinnati Law Review

Rather than run competitive re-election campaigns, some legislators have opted to have their victory drawn for them. Political gerrymandering decides elections before a single vote is cast and prevents people from having equal opportunities to exercise their constitutional right to freedom of political association. When legislators gerrymander, they either split voters of one party among multiple districts so they won’t constitute a majority, or concentrate them into a few districts where they constitute a supermajority—commonly known as “cracking” and “packing”, respectively.[1] Legislators did not just stand idly by while this became a problem—they created the problem. [2] With Gill v. Whitford, the Supreme Court should reaffirm Davis v. Bandemer and clarify Vieth v. Jubelirer by unequivocally holding that political gerrymandering claims are justiciable.

Davis and Vieth: ABrief Survey of Political Gerrymandering Jurisprudence

             In 1986, Davis v. Bandemer  held that political gerrymandering cases were justiciable.[3] In Davis, the plaintiffs claimed that their votes were diluted by new district lines drawn by the Indiana legislature after the 1980 census, in violation of the Equal Protection Clause of the Fourteenth Amendment.[4]. The plaintiffs pointed to the 1982 election where Democratic candidates for the Indiana House received 51.9% of the popular vote statewide, yet only 43 of the 100 seats to be filled.[5] The most surprising results occurred in Marion County, where Indianapolis is situated, and in Allen County, where Fort Wayne is located. Both counties were divided into multi-member House districts. Democratic candidates drew 46.6% of the vote in these districts in 1982, but only 3 of the 21 Democratic candidates were elected.[6]

            In holding political gerrymandering claims as justiciable, the Court stated that it has “consistently adjudicated equal protection claims in the legislative districting context regarding inequalities in population between districts.”[7] It further held that Davis survived a Baker v. Carr analysis,[8] and referenced the “one person, one vote” principle of Reynolds v. Sims.[9] To further support the court’s holding of justiciability, Justice White surveyed the Court’s racial gerrymandering jurisprudence[10] and wrote specifically that “[i]n the multimember district cases, we have also repeatedly stated that districting that would ‘operate to minimize or cancel out the voting strength of racial or political elements of the voting population’ would raise a constitutional question.”[11] He then pointed to Gaffney v. Cummings [12] which  “upheld against an equal protection political gerrymandering challenge a . . . scheme that was formulated in a bipartisan effort to try to provide political representation . . . proportional to the strength of political parties in the State.”[13] In Justice White’s view, Gaffney was the exact kind of political gerrymandering claim that was at issue in Davis, just without the explicit holding that such claims are justiciable.[14] He also wrote that holding political gerrymandering claims as non-justiciable political questions would transform the Baker v. Carr factors into an “ad hoc litmus test” of the Court’s reactions to whether a claim is desirable and warrants judicial intervention.[15] Thus, the heart of the underlying claim in Davis was that “each political group in a State should have the same chance to elect representatives of its choice as any other political group.”[16]

            The Davis court never agreed on a set standard by which political gerrymandering claims could be evaluated. The standard eventually applied in the lower courts[17]—that a plaintiff in a political gerrymandering case needed to prove “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group”[18]—was only articulated in a separate plurality opinion by Justice White.[19]

The Court reversed course eighteen years later in Vieth v. Jubelirer. In Vieth, a plurality held that political gerrymandering claims were not justiciable.[20] Justice Scalia’s plurality opinion rested on three central conclusions: (1) political gerrymandering has been around for a long time;[21] (2) Article I, § 4 of the Constitution gives Congress the power to alter state legislative maps;[22] and, (3) political gerrymandering claims are a political question.[23] The driving reason behind this plurality opinion, however, was the standard adopted by the lower courts mentioned above. To Justice Scalia, it had a record of “puzzlement and consternation,”[24] and “[e]ighteen years of judicial effort with virtually nothing to show for it justif[ied] [the Court] in revisiting the question whether the standard promised by Bandemer exists.”[25] Because of the lack of a concrete standard, the appellants in Vieth suggested a new standard: that a plaintiff “must ‘show that the mapmakers acted with a predominant intent to achieve partisan advantage,’ which can be shown ‘by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.’”[26] Justice Scalia rejected this standard as too vague and un-manageable.[27] Justice Kennedy joined the judgment of the Court but stated that he “would still reject the plurality’s conclusions as to nonjusticiability.[28] He argued that even though “no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”[29]

Whitford, the First Amendment, and an Opportunity for the Supreme Court

            Twelve years after Vieth, and thirty years after Davis, Whitford v. Gill was decided. The plaintiffs were Democratic voters in Wisconsin who brought the challenge after the 2012 and 2014 elections, in which Republicans received 48.6% and 52% of the statewide popular vote yet won 60 and 63 of 99 legislative seats, respectively, under the map drawn after the 2010 census. The district court agreed that the map infringed on the plaintiff’s First Amendment right to freedom of association and Fourteenth Amendment right to equal protection.[30]

Gill is different from Davis and Vieth in two main ways. First, the underlying claim contains both First Amendment and Equal Protection arguments. Specifically, the plaintiffs argue that by disadvantaging voters based on their political affiliation, Wisconsin violated their First Amendment right to freedom of political association.[31] Equal protection is also a powerful claim, but has a checkered history with political gerrymandering cases, as demonstrated by Davis and Vieth. The First Amendment provides a stronger basis for holding political gerrymandering claims as justiciable, because the Court has held for over four decades that the freedom of political association is a constitutionally-protected right.[32] Part of political association is working to elect candidates sharing one’s beliefs; thus, gerrymandering a map to disfavor certain political groups places a heavy burden on the First Amendment right of political association. That in and of itself makes the First Amendment argument more logical, because legislators are suppressing the ability of a group to express its views and exercise its freedom of association. While there isn’t a Supreme Court case setting a level of scrutiny for burdens on political association, the Seventh Circuit has previously held that strict scrutiny should apply.[33] If, however, the Gill Court goes so far as to hold that political gerrymandering suppresses political speech, strict scrutiny will apply.[34]

The second way Gill is different is in the standard[35] proposed by the plaintiffs for the Court to apply to political gerrymandering claims. The plaintiffs propose using a mathematical formula called the Efficiency Gap (EG). The EG has the potential to give the Court a judicially-manageable standard for political gerrymandering claims. To briefly state, it measures which party is better at converting its votes to legislative seats. If a party’s advantage is outside of an accepted range, that indicates the map might be gerrymandered.[36]

This proposed formula represents a potential solution to the issues faced by both the Davis court and the Vieth court. Baker v. Carr also requires a judicially-manageable standard for a case to avoid being deemed a non-justiciable political question.[37] The EG formula is a smart way to evaluate these claims, because it uses an unbiased, scientific method. Determining whether legislators gerrymandered a map logically requires sensitive inquiries into the factual background of a map’s construction and legislators’ intent. Judges interpret facts differently, and without an objective standard to evaluate these claims, any conclusions that they draw could be problematic.

In his Vieth concurrence, Justice Kennedy kept the door open for a judicially-manageable standard to emerge. If the Court holds that these claims are justiciable, expect a new wave of political gerrymandering claims to appear on dockets across the country—especially if the Court adopts the EG standard. Maps across the country that previously could not be proven to be racially discriminatory, for instance, could be successfully challenged based on the allegation that they are politically discriminatory. The role of legislators in drawing electoral maps will be heavily scrutinized, as the EG provides the clearest way of measuring gerrymandering. The blind eye the Court has turned to gerrymandering due to the lack of a standard by which to evaluate claims has allowed this practice to become a national problem. Legislators have broad authority to make laws, but they should not be permitted to abuse the power with which they are entrusted to gerrymander themselves to victory.[38] That makes the EG an even more attractive formula by which these claims should be evaluated, because math helps courts avoid highly subjective and sensitive factual inquiries that currently render these claims nonjusticiable.

Conclusion

For the Court to hold in Gill v. Whitford that political gerrymandering claims are nonjusticiable—thus removing the possibility of judicial review of political gerrymandering—would be like putting the fox in charge of the henhouse Legislators, armed with sharp consultants, reams of maps, and Excel tricks and gimmicks would have no incentive to draw fair districts if they knew there would be no judicial review for political gerrymandering, just as it is today. No one’s vote should be diluted just because of their political beliefs. reaffirm voters’ First Amendment right of political association by adopting the EG formula in Gill v. Whitford to unequivocally hold that political gerrymandering claims are justiciable.

 

[1] A particularly illustrative example of cracking and packing is illustrated in the following article. Emily Bazalon, The New Front in the Gerrymandering Wars: Democracy vs. Math, The New York Times (Aug. 29, 2017), https://www.nytimes.com/2017/08/29/magazine/the-new-front-in-the-gerrymandering-wars-democracy-vs-math.html?mcubz=3&_r=0.

[2] The Washington Post catalogued some of the most gerrymandered districts in the country. Christopher Ingraham, America’s most gerrymandered congressional districts, The Washington Post (May 15, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.4cb8154dfc90.

[3] Davis v. Bandemer, 478 U.S. 109, 110 (1986) (holding that the Court was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander[ing] cases are to be decided.”).

[4] Id. The map included fifty single-member districts for the Indiana Senate, and 7 triple-member, 9 double-member, and 61 single-member districts for the Indiana House; Id. at 109.

[5] Id.

[6] Id.

[7] Id. at 118.

[8] Id. at 122-123.

[9] 377 U.S. 533 (1964).

[10] Racial gerrymandering has a better-developed body of case law. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986); Cooper v. Harris, 137 S. Ct. 1455 (2017).

[11] Davis, 478 U.S. at 119 (quoting Fortson v. Dorsey, 379 U.S. 433 (1965)).

[12] Gaffney v. Cummings, 412 U.S. 735 (1973). This might be helpful for the appellees in Gill v. Whitford.

[13] Davis, 478 U.S. at 119.

[14] Id. Justice White then went on to cite numerous cases where the Court summarily affirmed or dismissed for want of a substantial federal question cases involving political gerrymandering. Furthermore, because those cases were all summarily decided, that did not preclude the Court’s consideration of Davis. Id. at 121.

[15] Id. at 126.

[16] Id.

[17] Vieth v. Jubelirer, 541 U.S. 267, 268 (2004).

[18] Davis, 478 U.S. at 127 (citing Mobile v. Bolden, 446 U.S. 55, 67-68 (1980)).

[19] Id.

[20] Vieth v. Jubelirer, 541 U.S. 267, 268 (2004).

[21] Id. at 274 (“[p]olitical gerrymanders are not new to the American scene). Justice Scalia then traces their colonial and early modern history.

[22] Id. at 275.

[23] See Id. at 277-279.

[24] Id. at 282.

[25] Id. at 281.

[26] Id. at 284.

[27] Id. at 288. (“[e]ven if the standard were relevant, however, it is not judicially manageable.”).

[28] Id. at 311 (Kennedy, J. concurring).

[29] Id. Justice Scalia called this a “never-say-never approach.” Id. at 303.

[30] Whitford v. Gill, 218 F. Supp. 3d 837, 930 (W.D. Wis. 2016).

[31] Whitford, 218 F. Supp 3d at 883-884 (“[w]e conclude, therefore, that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.”).

[32] Cousins v. Wigoda, 419 U.S. 477, 487 (1975) (“’[t]he right to associate with the political party of one’s choice is an integral part of . . . basic constitutional freedom.’”) (quoting Krusper v. Pontikes, 414 U.S. 51, 56-57 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968) (“this freedom [political association] protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.”).

[33] Wren v. Jones, 635 F.2d 1277, 1285 (7th Cir. 1980). The court relied on Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (976), in which the Court applied a high level of scrutiny when government employees were discharged for their political beliefs.

[34] Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010).

[35] Id. at 854-855. ((1) intent to gerrymander for partisan advantage; (2) partisan effect, which can be proven by showing the efficiency gap (EG)—based on a mathematical formula—between the parties exceeded an acceptable interval (proposed to be 7%); and (3) a duty of the defendants to rebut the presumption of unconstitutionality created by the first two elements by showing that the partisan gerrymander was necessary.)

[36] Id. The formula first requires one to calculate how many votes are cast for a party in excess of the number needed to win (which measures packing); then it requires one to calculate how many votes are cast by a party for a losing candidate (which measures cracking).[36] Each party’s respective number of wasted votes is then divided by the total number of votes cast in the election, and it is the relative comparison of those two numbers that determines the EG.[36] An EG of zero would mean both parties are wasting equal numbers of votes, and an EG in favor of one party or the other means that party wasted votes at a lower rate than the other party.[36] Thus, an EG in favor of Party A means that party was more efficient at translating its votes into legislative seats. Wisconsin’s EG under this new map was 11.69% in favor of Republicans, which contradicted what should happen in elections held under a fairly-drawn map. Id.

[37] Baker, 369 U.S. at 217.

[38] See Robert Draper, The League of Dangerous Mapmakers, The Atlantic (October 2012), https://www.theatlantic.com/magazine/archive/2012/10/the-league-of/309084/. This in-depth analysis shows just how out of control gerrymandering has become.

UNITED STATES V. FOKKER SERVICES BV: EXECUTIVE POWER OVER DPAS SHOULD BE CHECKED

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review

Today, due to the risk of unwarranted collateral damage to innocent employees, large corporations are too big to jail. After the Arthur Anderson case in 2002, where Enron’s accounting firm was criminally prosecuted, thousands of innocent employees lost their jobs.[1] In response, the Department of Justice (DOJ) has significantly increased its use of deferred prosecution agreements (DPAs) in cases in which corporations are criminally charged.[2] In a DPA, the prosecutor requires the corporation to fulfill certain punitive and rehabilitative obligations, such as paying fines and implementing new company policy. In return, the charges against the corporation are dropped.[3] Since prosecution is under the arm of the Executive branch, DPAs are largely free of any judicial scrutiny. In most cases, to the chagrin of some district court judges, the judiciary acts as a “rubber stamp” for DPAs. In 2015, when an Article III judge challenged this notion in United States v. Fokker Services BV[4], the DC Circuit upheld “the Executive’s long-settled primacy over charging,” by ruling that courts are not permitted to reject a DPA based on a finding that it is inadequate.[5] While DPAs serve a commendable protectionist purpose, Fokker goes too far in limiting the judiciary’s role in reviewing their terms. Prosecutors may now operate under the assumption that their DPAs will always be rubber stamped, even if a judge were to find them “grossly disproportionate” in light of the conduct, as was the case in Fokker.[6]

Fokker Services B.V.

Fokker Services B.V. is a Dutch aerospace company.[7] From 2005 to 2010, the company exported aircraft parts, technology, and services to multiple branches of the Iranian military, along with Sudan and Myanmar.[8] Furthermore, Fokker deliberately worked to evade US sanctions by performing various illegal methods to obscure their practices, such as deleting references to Iran and falsifying documents and records.[9] The company’s president and senior management were aware of both the laws and the illegal practices.[10] In 2014, the DOJ and Fokker agreed to an eighteen-month DPA, after which the company would receive amnesty.[11] The DPA required Fokker to pay a total of $21 million in fines, fully cooperate with the government, and implement a compliance policy.[12]

The District Court

The DOJ brought the DPA to the district court along with a motion to exclude the eighteen-month period under the Speedy Trial Act, which requires trials to begin within seventy days of filing charges.[13] The parties argued that the judge’s purview was “limited to reviewing the proposed exclusion of time pursuant to the Speedy Trial Act.”[14] However, Judge Richard J. Leon both denied the motion and rejected the DPA on the grounds that it was not in the public interest.[15] Judge Leon took specific objection to: (1) the company was fined no more than what it had illegally earned; (2) there was no independent monitoring established; and (3) no individuals were independently prosecuted or fired.[16] Judge Leon explained that the DPA was too lenient and therefore “did not constitute an appropriate exercise of prosecutorial discretion.”[17]

The Appeal

The parties appealed to the D.C Circuit on the grounds that the District Court should have granted the motion to exclude time, and should not have rejected the DPA.[18] The D.C Circuit vacated the District Court’s order, explaining that the Speedy Trial Act “confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government should bring different charges or should charge different defendants.”[19] The court further explained that the judiciary lacks the authority to second guess the Executive’s primacy in criminal charging, therefore, the District Court had overstepped by “rejecting the DPA based primarily on concerns about the prosecution’s charging choices.”[20] Furthermore, the D.C. circuit explained that the judiciary lacks the competence to review the government’s choices in a DPA, because its provisions manifest the government’s prosecutorial considerations which are “ill-suited for substantial judicial oversight.”[21] Thus, the court remanded with an order to exclude the eighteen months.[22]

Implications

On one hand, the Circuit Court’s ruling in Fokker gives strong guidance on the judiciary’s limited to non-existent role in evaluating and rejecting DPAs, which will allow corporations and federal prosecutors to negotiate comfortably in a predictable regime. However, the precedent set by the Fokker court only exacerbates a problem that legal scholars already lamented—that prosecutors hold an excessive amount of power in the realm of corporate criminal justice.[23] Now, when a DPA crosses a judge’s desk, he is to rubber stamp it, regardless of its contents.

This unchecked authority enjoyed by the Executive threatens the protections of the separation of powers. Under the constitution, the authority to make the law, enforce the law, and review the law are separated among the branches of government. However, after Fokker, the Executive has the power to do all three through the use of DPAs. Without judicial incursion, the prosecutors have the ability to both create and interpret the laws. The DOJ has the ability to require companies to follow codes of its own choosing, effectively creating new laws for corporations to follow.[24] Furthermore, the DOJ has the authority to interpret both the laws and the offenses, as the laws essentially become whatever the prosecutors say they are, because the prosecutors ultimately control the private agreements.[25]

Criticism

Ultimately, the Fokker court went too far in limiting the judicial role in reviewing DPAs. Judge Leon was correct to ask whether the agreement was in the public interest, and correct to rule that it was not. Under this DPA, there were essentially no punitive or deterrent measures. The company was only required to pay back the money it had made illegally, there was no monitor imposed upon them to ensure that they followed the laws in the future, and not a single employee was prosecuted or even lost their job. As Judge Leon described, this punishment was “anemic,”[26] and it did little to ensure that other corporations would not engage in similar behavior, nor that the interests of justice were served. Fokker was selling parts and services to the military of a US enemy, and the Circuit Court defended the prosecution’s supreme right to form an insufficient deal.

Moreover, even if the Circuit Court had wanted to uphold the DPA in this case, they could have done so with less broad language. The Circuit Court should have explained how Judge Leon overstepped his discretion, and provided the criteria by which this discretion was analyzed. Instead, the court stated in a blanket manner that the judiciary should not interfere with the prosecutor’s agreements.

Conclusion

The Circuit Court’s ruling was overbroad. While there are many reasons that judicial review should be limited in the context of DPAs, such as Executive deference, prosecutorial efficiency, and trust that corporate criminal deals will be upheld, the judiciary should not be rendered mute on the issue. Not only are there significant implications regarding the separation of powers, but unjust agreements can be rubber stamped—as was the case in Fokker. In most cases, the judiciary should defer to the prosecutor anyway, so in the rare case, like Fokker, where the judge rejects a DPA, the rejection should not be per se invalid. The courts would do a great service by outlining the parameters of an agreement that is outside of the public interest, rather than rejecting any judicial review.

[1] See Corporate Crime Reporter, Arthur Andersen Corporate Criminal Liability and the Rise of Deferred and Non Prosecution Agreements, https://www.corporatecrimereporter.com/news/200/arthur-andersen-corporate-criminal-liability-and-the-rise-of-deferred-and-non-prosecution-agreements/.

[2] See Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations 41, 44, 55 (2014).

[3] Id. at 5.

[4] 818 F.3d 733 (D.C. Cir. 2016).

[5] Id. at 743.

[6] 79 F.Supp.3d 160, 167 (2015).

[7] Id. at 161.

[8] Id. at 162

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] 18 U.S.C. §§ 3152–3156, 3161–3174 (2012).

[14] DOJ Supplemental Memorandum at 2, United States v. Fokker Servs. B.V., No. 14-CR-121 (RJL) (D.D.C. July 18, 2014), ECF No. 11.

[15] United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 166 (D.D.C. 2015).

[16] Id.

[17] Id.

[18]  United States v. Fokker Services B.V., No. 15-3016, 2016 WL 1319266, at *1 (D.C. Cir. Apr. 5, 2016).

[19] Id. at 4.

[20] Id.

[21] Id at 9.

[22] Id. at 7.

[23] See Richard A. Epstein, The Deferred Prosecution Racket, Wall Street J. (Nov. 28, 2006). https://www.wsj.com/articles/SB116468395737834160.

[24]  See, e.g., Jennifer Arlen, Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed Through Deferred Prosecution Agreements, 8 J. Legal Analysis 191, 192 (2016).

[25] Mike Koehler, Measuring the Impact of Non-Prosecution and Deferred Prosecution Agreements on Foreign Corrupt Practices Act Enforcement, 49 UC Davis L. Rev. 497, 505 (2015).

[26] Fokker Servs., 79 F. Supp. 3d at 167.

The Right To Breast-Feed

Author: Melanie Cheek, University of Cincinnati Law Review, Associate Member

Women who choose to breast-feed often make the choice to do so despite social and economic barriers. Although the benefits of breast-feeding have been widely promoted,[1] there are gaps in laws and policies supporting a woman’s decision to breast-feed. This approach seems counterintuitive to the supposed governmental interest in supporting women who choose to breast-feed. Indeed, American policies seem lightyears behind countries such as Canada, where public breast-feeding is not only a woman’s rights issue, but a public health issue.[2] Although there have been advancements in the promotion of women’s right to breast-feed, there are still issues within existing laws and policies that need to be addressed by federal and state legislators, and the judiciary.

Public Brest-feeding Rights in Ohio

Although Ohio has some of the most progressive breast-feeding rights and protective laws in the country, only a little more than a decade ago, Ohio allowed open discrimination toward breast-feeding women. The laws that exist today were legislative responses to two separate court decisions that threatened to undercut federal progress made on women’s breast-feeding rights and protections.[3]

In 1999, three women sued Wal-Mart Stores Inc. after the three women were interrupted while breast-feeding their children and asked to either leave the premises or finish breast-feeding in the public restroom of the store.[4]  The women alleged that by doing so, Wal-Mart violated the public accommodations[5] provision of the Ohio Civil Rights Act,[6]  which prohibits sex discrimination by places of public accommodations.[7] Wal-Mart did not deny the factual allegations that such incidents took place.[8] Instead, Wal-Mart crafted its argument based on a statutory interpretation of Ohio’s public accommodation statute that would allow places of public accommodations to limit or even prohibit breast-feeding activities on their premises.[9]

Surprisingly, the district court[10] agreed with Wal-Mart’s argument, holding that restrictions on breast-feeding did not constitute discrimination based on sex under Ohio’s public accommodations statute.[11] Unbeknownst to the Plaintiffs when they filed suit, the battle was lost before it even began, resulting in the grant of Wal-Mart’s motion for summary judgment. The district court insisted upon evidence in which members of the male sex who breast-feed were treated differently by Wal-Mart while engaging in the same activities on the store’s premises.[12] Without such evidence, the district court reasoned, Plaintiffs could not show that they were discriminated against because of their sex.[13] To the district court, the incidents were simply illustrations of poor treatment toward the Plaintiffs, rather than discrimination.[14] Ultimately, Defendant Wal-Mart, although a place of public accommodation, had the right to limit breast-feeding activities on its premises.[15]

When the Plaintiffs appealed the case to the Sixth Circuit, the Sixth Circuit affirmed the district court’s decision.[16] Although the Sixth Circuit reviewed the case under Ohio state law, the Court looked to a federal framework to analyze claims of sex discrimination, and relied on the comparability analysis from the 1976 Supreme Court Case General Electric v. Gilbert.[17] In Gilbert, a pregnant employee brought a sex discrimination suit under Title VII against her employer, General Electric, alleging that the company’s disability benefits offered its employees a disability plan for non-occupational sicknesses and accidents, yet discriminated against women by not providing coverage for disability that result from pregnancy.[18] Ultimately, the Supreme Court held that General Electric’s disability plan did not violate Title VII, even though the plan excluded coverage for pregnancy related medical costs, because there was no benefit the plan provided for men, a comparative group, that it did not also provide women.[19] The fact that Gilbert was a federal case that dealt with sex discrimination in the workplace, and not the public accommodations context, makes the Sixth Circuit’s decision to use the Gilbert framework for their analysis of sex discrimination under a state public accommodations statute even more curious.

In its analysis of the trial court’s decision in Derungs, the Sixth Circuit looked to Ohio case law which analyzed discrimination cases based on the evidence of subclasses receiving better treatment than other subclasses.[20] The court reviewed several cases, including a barbershop that was found to discriminate against its white and black customers,[21] and a trailer park operator who ordered a tenant to leave the lot after learning that she associated with black people.[22] All the cases the Sixth Circuit reviewed involved discriminatory incidents that could conceivably produce evidence of an alternate subclass being treated differently than the Plaintiffs in those cases were treated. In contrast, the Plaintiffs in Derungs faced discrimination by engaging in behavior that biology itself restricts to only the female sex, and excludes the alternate subclass of the male sex entirely.[23] Due to this, the Sixth Circuit’s decision to compare Derungs to discrimination cases where evidence of an alternate class receiving better treatment is entirely plausible is contentious.

Although the types of discrimination in the cases the Sixth Circuit reviewed differed from the discrimination alleged in Derungs on a biological level, the Circuit inevitably affirmed the district court’s decision.[24] The rationale was that Plaintiffs’ case was a “sex plus” case, where the alleged discrimination was not only based on sex, but on sex considered in conjunction with a second characteristic.[25] Since Plaintiffs could not provide evidence of a subclass of men who were treated differently by Wal-Mart when engaged in breast-feeding, the Circuit held that there was no showing that Wal-Mart had engaged in sex based discrimination.[26]

Ohio’s Breast-feeding Statute

In 2005, after the Sixth Circuits disappointing decision in Derungs, the Ohio legislator amended the Ohio Revised Code (ORC) to include a breast-feeding statute that explicitly and affirmatively provided for a woman’s right to breast-feed in places of public accommodations in Ohio.[27] However carving out an affirmative right to breast-feed in the ORC did not invalidate the Sixth Circuit’s reasoning in its decision.[28] Unfortunately, the analysis behind the Derungs decision is still good law, and has been cited to following the amendment.[29]

The fact that Derungs is still good law is notable, specifically because Congress responded to the Supreme Court’s decision in Gilbert by amending Title VII through the Pregnancy Discrimination Act.[30] Just as the Ohio legislator did in response to Derungs, following the Gilbert decision, Congress amended Title VII to include plain English protection for women against pregnancy-based sex discrimination.[31] Unfortunately, just as Congress’s amendment to Title VII did not prohibit the Sixth Circuit from employing Gilbert’s outdated framework, there is nothing to prevent other jurisdictions from looking to Derungs. The Ohio amendment also differs from Congress’s reaction to Gilbert in that Congress reacted by amending the very definition of sex discrimination under Title VII. On the other hand, the Ohio legislators merely amended the ORC to include an affirmative breast-feeding right under a general provision, and left the Ohio Civil Rights Act unchanged.

The fact that the analysis behind Derungs is still good law, and the fact that the Ohio amendment was made under a general provision, makes amendment a small, albeit important, step in overcoming the indifferent attitude that governments and the judiciary have toward women’s breast-feeding rights.

Equity to Produce Fairness


            The Equal Protection clause that birthed civil rights laws dictates that all people be treated equally under the law.[32] Courts undoubtedly struggle with the application of equality when it comes to the differences that typically exist between the male and female sex. However, overly rigid frameworks result in legal loopholes where sex discrimination can thrive. Strict interpretations of equal protection that do not recognize such differences dictate sex discrimination, undermining the very purpose of laws that prohibit sex discrimination.

The district court and the Sixth Circuit’s hairsplitting reasoning in Derungs that discrimination resulting from the female population’s distinctive ability to become pregnant is not sex discrimination, is disappointing. Pregnancy and the effects of pregnancy, such as lactation, are conditions that are confined strictly to the female sex.[33] Those who become pregnant and lactate can do so solely because of their sex.[34]

However, the Supreme Court in Gilbert, and the district court and Sixth Circuit in Derungs, chose to dismiss this distinction in favor of a strict interpretation and application of equal treatment

In the pursuit of strict interpretations of equal protection standards, courts have come up with unrealistic and impracticable standards of comparisons. A policy that disproportionally impacts only one sex in grossly negative ways should not be glossed over as gender-neutral policies that satisfy equality. Courts must become comfortable with the notion that there can be instances where the existence of a policy could be inconsequential to one group but could produce extreme hardships and burdens for another if it did not exist. Anti-discrimination protection for breast-feeding women is one such instance where the rights of the male sex are entirely unaffected by existence of laws and policies that protect pregnancy. As such, the analysis in such instances should not be whether laws and policies affect both sexes equally, but whether such laws and policies have a disparate impact on only one sex. By doing so, courts will find that many policies that seem fair on the surface are not gender-neutral after all.[35]

Conclusion

Denying that pregnancy-based discrimination is sex discrimination is a dangerous proposition. Courts are understandably unsure how to approach the differences between the male and female sex. However, previous decisions such as Gilbert and Derungs unapologetically blanket the issue of sex discrimination faced by millions of women. Ironically, insisting that equal treatment and differences in how sexes are discriminated against are mutually exclusive is what impedes the equitable application of anti-discrimination statutes. The biological differences between the female and male sex calls for certain kinds of differences in the laws that protect the interests and liberties of each sex. This fact is something courts must become comfortable with if the promotion of equality and anti-discrimination is truly a goal.

[1] CENTERS FOR DISEASE CONTROL AND PRESENTATION. (stating that one of the most highly effective preventive measures a mother can take to protect the health of her infant is to breast-feed), at https://www.cdc.gov/breastfeeding/promotion/index.htm (last visited Mar. 10, 2017).

[2] Patricia Spurles, A Qualitative study of Attitudes toward Public Breastfeeding Among Young Canadian Men and Women, 2 J Hum. Lact. 131-37 (2011).

[3] Heather M. Kolinksy, Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention to Develop, Protect, & Support a Breastfeeding Culture in the United States 17 Duke J. of Gender L. & Pol’y 333, 361 n.224 (2010).

[4] Derungs v. Wal-Mart Stores Inc., 141 F. Supp. 2d 885, 886 (S.D. Ohio 2001).

[5] Places of public accommodations include any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public. Ohio Rev. Code Ann. § 4112.01 (Page, Lexis Advance through file 178 (HB 532)).

[6] Ohio Rev. Code Ann. § 4112.02 (Page, Lexis Advance through file 178 (HB 532)).

[7] Derungs, 141 F. Supp. 2d at 888.

[8] Id. at 886.

[9] Id.

[10] The suit was removed to federal court after Wal-Mart filed a notice for removal based on diversity jurisdiction.

[11] Derungs, 141 F. Supp. 2d at 894.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 437 (6th Cir. 2004).

[17] The comparability analysis evaluates discrimination by looking to evidence of members of a comparable group receiving better treatment. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127-30 (1976).

[18] Gen. Elec. Co. v. Gilbert, 429 U.S. at 126.

[19] Id. at 130.

[20] Derungs v. Wal-Mart Stores, Inc., 374 F.3d at 433.

[21] See Gegner v. Graham, 1 Ohio App. 2d 442, 205 N.E.2d 69 (1964).

[22] See Ohio Civil Rights Com. v. Lysyj, N.E.2d 3, 7 (1974).

[23] Benjamin B. Wolman, Adolescence: Biological and Psychological Perspectives 74 (1998).

[24] Derungs v. Wal-Mart Stores, Inc., 374 F.3d.

[25] Id. at 432.

[26] Derungs v. Wal-Mart Stores, Inc., 374 F.3d at 437.

[27] Ohio Rev. Code Ann. § 3781.55 (Page, Lexis Advance through file 178 (HB 532)).

[28] The Ohio legislator did not amend § 4112.02. Instead the legislator created a new breast-feeding statute, separate from the statute that was analyzed in Derungs.

[29] See Philipsen v. Univ. of Mich. Bd. of Regents, No. 06-CV-11977-DT, 2007 U.S. Dist. LEXIS 25898 (E.D. Mich. Mar. 22, 2007).

[30] Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 UC Davis Law Review 961, 963 (2013) (stating that Congress disagreed with the Court’s decision in Gilbert and quickly superseded the decision by enacting the Pregnancy Discrimination Act).

[31] Pub. L. No. 95-555, 92 Stat. 2076 (1978).

[32] U.S. Const. amend. XIV, § 1.

[33] Benjamin B. Wolman, Adolescence: Biological and Psychological Perspectives 74 (1998).

[34] Recognition of this distinctions between the sexes is aligned with the Seventh Circuit’s decision in Hivley v. Ivy Tech, where the court held that “[d]iscrimination on the basis of sexual orientation is a form of sex discrimination.” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017). The court rejected the notion that the test for sex discrimination was whether a member of the opposite sex would face discrimination in the same way, and instead held that “the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Id. However, the Sixth Circuit very recently rejected the Hivley court’s reasoning as having no authoritative precedent in the Sixth Circuit.  See Grimsley v. Am. Showa, Inc., No. 3:17-cv-24, 2017 U.S. Dist. LEXIS 133350, at *10 (S.D. Ohio Aug. 21, 2017).

[35] Gen. Elec. Co. v. Gilbert, 429 U.S. 147-60. (Brennan, J., dissenting that the Court should have analyzed General Electric’s disability policy considering the company’s history of downgrading the role of women in the workforce, and its policy was clearly not gender-neutral).

Undue Burdens: Legislation with an Unconstitutional Purpose

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

On January 21, 2017, two and a half million people gathered across the world to stand, speak, and march for the rights of women.[1] These women were advocating for many rights, among them, reproductive freedom. But another, much less public, march began in November and continues still today.[2] Since the election of President Donald Trump, women across the United States have been visiting their gynecologists or Planned Parenthood to request long-term contraceptive solutions.[3] Triggered by an administration that is hostile to abortion rights[4] and the Affordable Care Act,[5] fear for the loss of control of their reproductive rights has driven the recent choices of many women across the country. Unfortunately, while women are taking necessary precautions to refrain from getting pregnant, the Trump administration’s rhetoric surrounding abortion has emboldened states.[6] Many of these states have proposed and enacted bills that place undue burdens on the right of a woman to choose to have an abortion.[7] Some are even so blatantly contrary to past Supreme Court cases that the motivation behind these bills is concerning. The bulk of this article will discuss the Supreme Court precedent on abortion and how these proposed and enacted state bills are unconstitutional.

SCOTUS History on the Right to an Abortion

On January 22, 1973, the Supreme Court handed down the monumental decision Roe v. Wade. Roe recognized that the constitutional right to privacy extends to a woman’s right to make her own personal medical decisions, specifically the decision to have an abortion without undue interference.[8] This right is not absolute and must be balanced against the states’ interests in regulating abortions to protect the health of the mother and the potential for life.[9] As such, the Court noted that the state’s interests become sufficiently compelling at a certain point in the pregnancy to allow regulations to be put in place to govern the abortion decision.[10]

Almost twenty years later, the Supreme Court revisited the right to abort in Planned Parenthood v. Casey.[11] Reaffirming the central holding in Roe, the Court reminded the states that there are limits to on interference with “a person’s most basic decisions about family and parenthood, as well as bodily integrity.”[12] Casey established a new test to evaluate state regulations on the right to have an abortion. This standard prohibits regulations that impose an “undue burden” on a woman’s right to seek an abortion. The Court noted that only where a regulation has a purpose or effect of placing substantial obstacle in the path of the woman “does the . . . [s]tate reach into the heart of the liberty protected by the Due Process Clause.”[13]

At issue in Casey were five provisions of the Pennsylvania Abortion Control Act of 1982.[14] These provisions required, among other things, that a married woman seeking an abortion must sign a statement indicating that she has notified her husband.[15] Alternatively, the provision allowed the married woman, in lieu of notifying her husband, to sign a statement certifying that: (1) her husband is not the man who impregnated her; (2) her husband could not be located; (3) the pregnancy is the result of spousal sexual assault that she has reported; or (4) the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.[16] If a physician performed the abortion without one of these two written statements, the doctor’s license would be revoked and they would be liable to the husband for damages.[17]

Finding the other four provisions not unduly burdensome on the woman’s right to seek an abortion, the Court only struck down the spousal notification requirement. Looking to an earlier case, the Court reaffirmed its holding that “the State cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”[18] The Court held that the spousal notification requirement was “tantamount to [a] veto” and was unconstitutional.[19] The Court did not ignore the husband’s interest in the life of his child, but simply recognized that empowering the husband with authority over his wife, similar to a parent over a child, was problematic, especially for a woman who reasonably feared the consequences of notifying her husband that she was pregnant.[20] This holding has remained untouched since 1992 and its relevancy has not diminished.

State Legislation

In the middle of an extremely publicized national election, local politics went under the radar. Many states took this opportunity to enact legislation that not only poses a risk to the health and safety of women, but is plainly unconstitutional in light of Planned Parenthood v. Casey and Whole Women’s Health v. Hellerstedt.[21]

On January 9, 2017, Oklahoma State Representative Justin Humphrey introduced a bill, HB 1441, that was approved by the state House Public Health Committee on February 14, 2017.[22] House Bill 1441 demands that “[n]o abortion shall be performed in this state without the written informed consent of the father of the baby.”[23] The bill requires a woman to provide the identity of the father of the baby to her physician when seeking to abort her pregnancy.[24] It further states that if the person so identified as the father contests his paternity, he may demand that a test be performed to verify his paternity of the child.[25] The bill does include exceptions for a pregnancy that is the result of rape, incest, or in cases where the physician determines that carrying the baby places the woman’s life in danger.[26] If approved by both houses of the Oklahoma legislature, the bill would take effect on November 1, 2017.[27]

However, the threat is not restricted to Oklahoma. At least fourteen other states introduced anti-abortion legislation in January 2017.[28] Many states continue to push for bills reflecting the “personhood” movement, based on the belief that life begins at conception.[29] Other states, such as Arizona and Missouri, enacted regulations on healthcare facilities, known as “Targeted Restrictions on Abortion Providers” or TRAP laws.[30] These regulations purport to make abortions safer, but as shown in Whole Women’s Health v. Hellerstedt, there is little to no evidence that the regulations are needed.[31] Additionally, a new Arkansas law grants a woman’s family members or healthcare provider a private right of action against an abortion provider to stop an abortion.[32] These laws cannot withstand constitutional scrutiny as they place substantial obstacles in the way of a woman’s right to seek an abortion.

Unavoidably and Unequivocally Unconstitutional

In Planned Parenthood v. Casey, the Supreme Court prohibited a measure that required a married woman to notify her spouse before an abortion could be performed. The Court emphasized the husband’s interests and concern for his child, but ruled that this concern could not act as a veto against the woman’s decision. Oklahoma HB 1441 is directly contrary to this holding, and even attempts to expand on the unconstitutional Pennsylvania provision. This bill forces every woman to notify and obtain informed consent from any father, not just in the case of a marriage. It is unavoidably unconstitutional as it places an undue burden on the woman’s abortion right. The bill’s sponsor, in an interview with The Oklahoman, noted “[m]y bill would stop an abortion if a father does not agree to the abortion.” This bill gives the father a veto power over the woman and her body. This is unequivocally unconstitutional.

Furthermore, the bill places an undue burden on the woman by stalling the abortion for a paternity test. After eight weeks into a pregnancy, the procedure is extremely invasive into the woman’s body. To allow a man to force a woman to undergo this procedure is an undue burden on her right to have an abortion.

Ignorant to the Ripple Effect

As states continue to enact legislation to effectively prohibit women from seeking abortions, it is worth noting that many seem willfully blind to the effects that their actions have on the health and safety of these women and their families. Several states in the United States have enacted “trigger laws” in hopes and in preparation for the overturning of Roe v. Wade. These laws would completely ban abortion in their states and take immediate effect. Many of these states already lack an abortion provider in 90-100% of their counties.[33] One of the states’ reasoning for enacting regulation after regulation on abortion is the state’s concern for the health and safety of the mother. Yet, statistics show that illegal and heavily regulated abortion only leads to unsafe and extremely dangerous abortions.

Additionally, some of these states are hostile to a child once it is born. Today, half of abortions sought are by women below the federal poverty level.[34] The “Family Cap” was introduced in the early 1990s and denies a child welfare assistance if, when the mother was pregnant or gave birth, she was receiving benefits from the state or federal government. In a bill summary for HB 1441, Representative Humphrey noted that the bill would have no fiscal impact on the state. Notably, this statement remains true because Oklahoma is one of the many states that still has a family cap. States, such as Oklahoma, effectively force a woman to have a child and then turn a blind eye to the child once it is born into a family that cannot adequately support it. Policies that allow for such a result cannot truly have the health and safety of the families in mind.

Conclusion

States are becoming increasingly bold when it comes to regulations on a woman’s right to an abortion. Some are writing language so contrary to constitutional precedent that the motivation behind the bills raise grave concerns. With a Presidential administration that expressed deep disdain for Roe v. Wade, attention to local politics is urgent. After a wave of phone calls, faxes, and letters in light of the cabinet nominees, it is now time to turn to state governments. When HB 1441 makes it to the House and Senate floors in Oklahoma, activists must compel their friends, family, and colleagues to raise their voices for the rights of women. As new legislation arises and the Supreme Court gains a ninth member, it seems the march for women’s rights has only begun.

[1] Heidi Przybyla & Fredreka Schouten, At 2.6 Million Strong, Women’s Marches Crush Expectations, USA Today (2017), http://www.usatoday.com/story/news/politics/2017/01/21/womens-march-aims-start-movement-trump-inauguration/96864158/.

[2] Lisa Bonos, The IUD Rush: Why Women are Seeking out Birth Control that can Outlast a Presidency, The Washington Post (2017), https://www.washingtonpost.com/news/soloish/wp/2017/02/07/why-women-are-seeking-out-birth-control-that-can-outlast-a-presidency/?utm_term=.01063b4c3bde.

[3] Id.

[4] Rebecca Harrington & Sonam Sheth, Here’s Where Trump Stands on Abortion and Other Women’s Health Issues, Business Insider (2016), http://www.businessinsider.com/donald-trump-abortion-womens-health-platforms-positions-2016-11.

[5] Bonos, supra note 2.

[6] Julie Zauzmer & Sarah Bailey, March for Life: Pence Speaks as Thousands Assemble at Washington Monument, The Washington Post (2017), https://www.washingtonpost.com/local/march-for-life-thousands-assemble-at-washington-monument/2017/01/27/7d880d52-e40a-11e6-ba11-63c4b4fb5a63_story.html?utm_term=.0373a8f99da4.

[7] Lisa Ryan, A New Arkansas Law Could Allow Fathers to Sue to Block Abortions, The Cut (2017), http://nymag.com/thecut/2017/02/spouses-can-block-abortions-under-new-arkansas-law.html; see also Sandhya Somashekhar & Amy Wang, Lawmaker Who Called Pregnant Women a ‘Host’ Pushes Bill Requiring Fathers to Approve Abortion, The Washington Post (2017), https://www.washingtonpost.com/news/post-nation/wp/2017/02/14/oklahoma-bill-would-require-father-of-fetus-to-approve-abortion/?utm_term=.de5ac2623d6a.

[8] Roe v. Wade, 410 U.S. 113 (1973).

[9] Id. at 154.

[10] Id.

[11] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[12] Id. at 849.

[13] Id. at 874.

[14] Id. at 833.

[15] Casey, 505 U.S. at 833.

[16] Id. at 887.

[17] Id. at 887-88.

[18] Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 69 (1976).

[19] Casey, 505 U.S. at 897.

[20] Id. at 898.

[21] 579 U.S. __ (2016).

[22] Public health and safety; prohibiting abortion to be performed without consent of the father; effective date, H.B. 1441, 56th. Cong. (2017).

[23] Id. at § 1(A).

[24] H.B. 1441 at § 2(B).

[25] Id.

[26] H.B. 1441 at § 1(D).

[27] H.B. 1441 at § 2.

[28] Olivia Becker, At Least 46 Anti-Abortion Bills are Already in Front of State Legislators, VICE News (2017) https://news.vice.com/story/at-least-46-anti-abortion-bills-are-already-in-front-of-state-legislatures-in-2017.

[29] Id.

[30] Id.

[31] 579 U.S. __ (2016) (holding that there was no evidence to support the assertion these regulations would make abortions safer, but instead placed substantial burdens on a woman’s ability to choose to have an abortion).

[32] Abortion—Unborn Child Protection from Dismemberment, 2017 Arkansas Laws Act 45 (H.B. 1032) (allowing a woman’s husband, her parents, or her healthcare provider to seek an injunction to stop the abortion).

[33] Abortion Clinics: Percentage of Counties Without a Known Clinic, Guttmacher Institute (2016), https://data.guttmacher.org/states/map?topics=58&dataset=data.

[34] Abortion Patients are Disproportionately Poor and Low Income, Guttmacher Institute (2016), https://www.guttmacher.org/infographic/2016/abortion-patients-are-disproportionately-poor-and-low-income.