On Monday, September 25, the justices will meet for their first conference after their summer recess, which is also known as the “long” conference. At that conference, they will consider more petitions than they do at any time of the year (usually somewhere around 2,000) but will grant relatively few – last year, the number was eight. Last month I began a series of posts that will focus on the cases that have been distributed for the “long” conference; this is the fourth post in that series.
One of the highest-profile cases on the September 25 conference is Janus v. American Federation of State, County and Municipal Employees, in which the justices have been asked to take on a question that they have agreed to review twice before: Whether public employees who do not belong to the union that represents them can be required to chip in to cover the costs that the union incurs in negotiating the contracts that cover them. The justices did not reach the issue the first time they considered it, in the 2014 case Harris v. Quinn. They returned to the question again two terms ago and heard oral arguments in January 2016, but they deadlocked after the February 13, 2016, death of Justice Antonin Scalia.
If the justices agree to review the case of Mark Janus, an Illinois state employee, they will not necessarily be writing on a blank slate. In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that, even if they cannot be required to pay fees that a union would use for political activity, like union organizing, public-sector employees can be required to pay a fee to cover the costs of contract negotiations. But Janus argues that even requiring him to pay the more limited fee violates his First Amendment rights because issues related to contract negotiations – like salaries, pensions and benefits for government employees – are inherently political. Therefore, he contends, his fee is going to support speech that is intended to affect the government’s policies, even if he disagrees with it. The U.S. Court of Appeals for the 7th Circuit rejected Janus’ argument, holding that it lacked the power to overrule the court’s decision in Abood. But, Janus tells the justices in his petition for review, they do have that power and should exercise it here.
Illinois and the union urge the justices to stay out of the dispute, telling them that there is no reason to get involved: There is no conflict between the court’s decision in Abood and its other First Amendment cases, and the test that the court has developed to determine whether an expense incurred by the union can be charged to non-members is both clear and easily applied. Equally significantly, they contend, the justices should leave the decision in Abood alone because people have come to rely on it: Illinois explains that “more than 20 states have enacted statutes permitting the collection of” the fees, and an “untold number of employment contracts” – covering “millions of public employees represented by unions that agreed to represent them in return for a guarantee that they would be adequately compensated for the services they were obligated by law to provide” – “have been negotiated pursuant to those laws.”
But even if the court wanted to reconsider this issue, they continue, this case is not the right one in which to do so because there are only two pieces of evidence in this case: The collective bargaining agreement between the union and Janus’ employer and a notice explaining how the fees would be used. That’s not enough information, the state says, for the court to resolve the question that Janus has asked them to decide; the justices would also need to know, for example, how many employees would continue to pay the fees if they weren’t mandatory, and what would happen to the quality and quantity of union services. And, the union adds, the court also lacks the power to hear the case, which was originally filed by the state’s governor, who (like Janus) opposed the fee. A federal court agreed with the state’s attorney general that the governor’s lawsuit could not go forward, but it also allowed Janus to join the case – a mistake, the union says, that should keep the Supreme Court from weighing in.
In Duke v. Preap, the government has asked the justices to weigh in on what happens to a non-citizen who is released from criminal custody but not immediately taken into custody by immigration officials. The case centers on the interpretation of a federal law, 8 U.S.C. § 1226(c), that instructs the Department of Homeland Security to take non-citizens who are convicted of certain crimes into custody and hold them until proceedings to deport them can be held. The first paragraph of the provision contains a list of the kinds of offenses that subject a non-citizen to immigration detention. That list is followed by a clause indicating that the non-citizen should be taken into immigration custody when he is released from prison. The second paragraph of the provision creates a narrow exemption from immigration custody – involving witness protection – that is not at play in this case.
The Board of Immigration Appeals, which handles appeals from immigration courts, has interpreted Section 1226(c) to describe which non-citizens convicted of crimes should be held by DHS after they are released from criminal custody. It does not mean, the BIA says, that a non-citizen who is convicted of one of the offenses described in the first paragraph is exempt from the mandatory detention if DHS does not pick him up immediately after he is released from prison. But a group of non-citizens have read the law differently, arguing that the mandatory detention applies only to non-citizens whom DHS takes into custody upon their release from prison.
The U.S. Court of Appeals for the 9th Circuit agreed with the non-citizens, and now the federal government has asked the Supreme Court to review that decision. In its petition for certiorari, the government contends that the appeals court’s ruling “has created a circuit conflict on an important and recurring issue of federal law.” Indeed, the government notes, even the 9th Circuit acknowledged that four other federal appeals courts have reached a contrary interpretation. And, the government adds, the 9th Circuit’s decision is wrong: Even if Section 1226(c) is ambiguous – about which the government is skeptical – the 9th Circuit should have deferred to the BIA’s interpretation.
The non-citizens tell the justices that they should not intervene at this point, because Congress is currently considering a bill that would do exactly what the government is currently asking the Supreme Court to do – which, they add, demonstrates Congress’ recognition “that the existing statute does not provide for mandatory detention in these circumstances.” Moreover, they observe, the 9th Circuit ruled that mandatory detention is only required when DHS takes a non-citizen into custody “promptly” after he is released, but it has not yet clarified exactly what “promptly” means in this context. And in addition to the fact that the decision below is correct, they observe, another reason to deny review at this point is the upcoming oral argument in Jennings v. Rodriguez, in which the court will consider (among other things) whether a non-citizen who is subject to mandatory detention is entitled to a bond hearing after six months.
The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices have been asked to consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.
While working for the City of Hays, Matthew Vogt applied for a job as a police officer in another city. As part of his agreement with the new employer, Vogt informed the Hays police department that he had kept a knife that he had acquired on the job. Using his statements, the Hays police department found “an audio recording which captured the circumstances of how Vogt came into possession of the knife,” and the state eventually charged Vogt with two felonies. The state held a probable cause hearing – at which, Vogt says, his statements about the knife were “used against him.”
The charges were dismissed, but Vogt filed a federal civil rights lawsuit in which he argued that the city and four officers (along with his would-be employer, who had withdrawn its offer) had violated his Fifth Amendment rights. The district court granted the defendants’ motion to dismiss Vogt’s claims, but (as relevant here) the U.S. Court of Appeals for the 10th Circuit reversed. It acknowledged that the Supreme Court had not yet weighed in on “the precise moment when a ‘criminal case’ commences” for purposes of the self-incrimination clause. But it reasoned that “the right against self-incrimination is more than a trial right,” so that it is “violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing.”
In its petition asking the Supreme Court to take the case, the city contends that review is warranted because the dispute “presents a significant and recurring question of constitutional law on which the lower courts are sharply divided.” Four federal courts of appeals and one state supreme court would agree with it, the city contends, that no Fifth Amendment violation occurs unless the compelled statements are used at a criminal trial, while four other federal appellate courts (including the 10th Circuit in this case) agree with Vogt that “the Self-Incrimination Clause is violated by any use of compelled statements at certain pretrial hearings.”
Opposing review, Vogt counters that the city has overplayed its hand: There is not actually any disagreement among the lower federal courts, he argues; to the contrary, the 10th Circuit “followed the consensus” – and in his opinion, correct – view that the self-incrimination clause “applies not only with respect to criminal trials but also to other parts of a criminal case, like bail hearings, arraignments, and probable cause hearings.” Moreover, he adds, even if there were a conflict of authority on this legal question, his case is not an appropriate one in which to consider the issue because the 10th Circuit’s ruling is not final, but instead simply allowed the case to continue in the trial court.