By Lisa Soronen.
Reed v. Town of Gilbert May Require Altering Sign Codes Nationwide
In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus briefin this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide.
While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. Content-based laws are only constitutional if they pass strict scrutiny — that is, if they are narrowly tailored to serve a compelling government interest. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”
Gilbert’s Sign Code failed strict scrutiny because its two asserted compelling interests — preserving aesthetic and traffic safety — were “hopelessly underinclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.
Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court has defined as content-based in this opinion. Communities will need to change these ordinances. Justice Alito, in a concurring opinion, offers a list of rules that he and two other Justices believes would not be content-based. Justice Kagan, in a separate concurring opinion joined by two other Justices, is less optimist about the impact of this ruling on local government:
As the years go by, courts will discover that thousands of towns have ordinances [that contain subject matter exemptions like historical markers] many of them “entirely reasonable.” And as the challenges to them mount, courts will have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of Sign Review.) And courts will strike down those democratically enacted local laws even though no one — certainly not the majority — has ever explained why the vindication of First Amendment values requires that result.
Bill Brinton, Rogers Towers wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, the American Planning Association, and Scenic America.
Walker v. Sons of Confederate Veterans Decides Significant Government Speech Case
In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.
The Sons of Confederate Veterans (SCV) proposed a specialty license plate which featured a faint Confederate flag in the background and the organization’s logo, a square Confederate flag. After receiving public comment on the proposed plate the Texas Department of Motor Vehicles Board unanimously voted against issuing it noting that many members of the general public found the design offensive. SCV sued Texas claiming that specialty plates are private speech and that the Board engaged in unconstitutional viewpoint discrimination by refusing to approve its design.
The Court disagreed concluding that specialty license plates are government speech. It relied heavily on Summum, where the Court held that monuments in a public park are government speech and that a city may accept some privately donated monuments and reject others. First, just as governments have a long history of using monuments to speak to the public, states have a long history of using license plates to communicate messages. Second, just as observers of monuments associate the monument’s message with the land owner, observers identify license plate designs with the state because the name of the state appears on the plate, the state requires license plates, etc. Third, per state law, Texas maintains control over messages conveyed on specialty plates and has rejected at least a dozen designs, just as the city in Summum maintained control monument selection.
The result in Walker wasn’t a foregone conclusion. In a vigorous dissent, Justice Alito questions much of the majority’s analysis. He points out that only within the last 20 years has Texas allowed private groups to put messages on license plates and argues that Texas allows messages on license plates in order to make money, not to convey messages it supports.
But Justice Breyer, ever the pragmatist, insists that “government would not work” unless the government may determine “the content of what is says.”
“How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”
EEOC v. Abercrombie & Fitch Stores: Court Rules Against Employer in Religious Accommodation Case
In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which NLC joined, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation.
Abercrombie & Fitch’s “Look Policy,” prohibits employees from wearing “caps” because they are too informal for the store’s desired image. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. The assistant store manager who interviewed Elauf told the district manager she believed Elauf wore the headscarf for religious reasons. The district manager decided Elauf should not be hired as headwear worn for any reason violates Abercrombie’s “Look Policy.”
The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Elauf’s religious beliefs. The Tenth Circuit held in favor of Abercrombie, finding that an applicant/employee must inform the employer about the need for a religious accommodation.
The Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a motivating factor in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motivating factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.
According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion, stated that the Court should have decided this question–in the negative.
Amanda Kellar and Chuck Thompson, International Municipal Lawyers Association, wrote the SLLC’s brief which was joined by the National Conference of State Legislatures, theNational League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, theInternational Municipal Lawyers Association, the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.
A Look Ahead: Luis v. United States Will Decide How Far Asset Forfeitures May Go
Even though her crimes aren’t violent and horrific like many criminal defendants who end up in the Supreme Court, it is hard to feel sorry for Sila Luis. But her point is that she has rights, regardless.
She was indicted on charges related to $45 million in Medicare fraud. Unsurprisingly, her personal assets amounted to much less than $45 million. The federal government sought to freeze the use of her assets not traceable to the fraud. She wanted to use them to hire an attorney.
The question in Luis v. United States is whether not allowing a criminal defendant to use assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.
This case is relevant to state and local government for a few reasons. First, while the asset forfeiture in this case likely went to reimburse the federal government for the Medicaid fraud, generally, state and local law enforcement receive asset forfeitures. Second, some state asset forfeiture laws, like the federal statute in this case, allow untainted assets to be substituted. Third, in some instances state and local governments, like the federal government in this case, are the victim of a fraud and seek to recoup as much of their losses as possible.
This case comes on the heels of last year’s Kaley v. United States, where the Supreme Court held 6-3 that defendants may not use frozen assets which are the fruits of criminal activities to pay for an attorney. Luis argues that it is “inconceivable” that she may not use “her own legitimately-earned assets to retain counsel.” The federal government responded that per her reasoning criminal defendants “could effectively deprive her victims of any opportunity for compensation simply by dissipating her ill-gotten gains.”
The district court, affirmed by the Eleventh Circuit, agreed with the United States using this example:
“[S]uppose . . . a bank robber [steals $100,000 and has] spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no. The bank has the right to have those substitute, untainted assets kept available for return as well.”