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Posts Tagged ‘SCOTUS’

Supreme Court Hears TCPA Case on Autodialer Definition

Posted on: January 22nd, 2021

By: Matthew Foree

The Supreme Court of the United States recently heard an important Telephone Consumer Protection Act (“TCPA”) case concerning the statutory definition of “automatic telephone dialing system” (“ATDS”). Whether a person used an ATDS can be a basis for liability and severe penalties. We previously reported on this matter here. The oral argument audio is available here and a transcript of the hearing is available here.

The argument centered around the definition of ATDS, which has created confusion among the courts, resulting in a patchwork of inconsistent decisions throughout the country. ATDS is defined in the statute as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The Supreme Court is considering whether the definition of ATDS in the TCPA encompasses any device that can store and automatically dial telephone numbers, even if the device does not use a random or sequential number generator.  

The argument necessarily involved statutory interpretation and the rules of grammatical construction. Facebook argued, among other things, that the statute should be read according to its text, including that the phrase “telephone numbers to be called, using a random or sequential number generator” applies to both verbs, “store” or “produce.” This argument raises the difficult concept that something can be “stored” using a “random or sequential number generator.” Facebook argued that a contrary reading covers any device that can store and dial numbers without the use of a “random or sequential number generator.” This raised the idea that a smartphone could be considered an autodialer. 

Interestingly, given the grammatical nature of the dispute, Bryan Garner, of legal writing fame, argued for Duguid. He began by underscoring the Congressional purpose of privacy in enacting the TCPA. He also argued that rules of grammar permit a reading of the statute where the phrase “telephone numbers to be called, using a random or sequential number generator” can apply to only the verb “produce,” which precedes the phrase, and not the verb “store.” He argued that Facebook’s interpretation reads the statute “into oblivion,” with the impact being the unwanted proliferation of robocalls.

So, to over-simplify, on one side we have an argument that could promote the proliferation of robocalls and on the other one that could drastically reduce them. The hearing underscored the continuing confusion surrounding the ATDS definition. In 1991, when the statute was enacted, cellular telephones were in their infancy (and the size of bricks) and text messages did not exist as they do today. The parties and the Justices struggled with fitting today’s technology into the statutory language and some seemed to consider other ways to get around the problem. Perhaps the most interesting example was Justice Thomas asking why a text message is considered a call under the TCPA at all.

This confusion has driven the split among the U.S. Circuit Courts of Appeal, which have interpreted the statutory language inconsistently. Some courts, like the Eleventh Circuit, interpret the language literally with a restricted approach, while others have expanded the definition.  Most notably, the U.S. Court of Appeals for the  Ninth Circuit in Marks v. Crunch San DiegoLLC concluded that the “statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to dial stored numbers automatically.”    

Practitioners and their clients are eagerly awaiting the Court’s decision on this matter so that it can be put to rest, hopefully.  A ruling is expected by summer of 2021.    

For more information, please contact Matt Foree at [email protected].

Are Adult Entertainment Clubs Going To Save California’s Restaurants?

Posted on: December 22nd, 2020

By: John Moot

In what could be the beginning of a reopening for restaurants hard hit by California’s new stay at home orders, two San Diego adult entertainment clubs have come to the rescue. A San Diego Superior Court Judge on December 16th granted a preliminary injunction enjoining any governmental entity or law enforcement officer from enforcing cease and desist orders including the State’s Regional Stay at Home Order against two well-known adult entertainment venues in San Diego who also serve food. Using the United States Supreme Court’s recent decision allowing churches in New York to open for indoor services as a jumping off point, the Court applied the First Amendment rights of adult entertainment establishments to find the State’s rational to close their business that included selling food to be woefully deficient. In a careful analysis of the facts including the County’s own witnesses, the Court found there was no evidence the adult entertainment clubs or their restaurant exposed patrons, its staff or employees to COVID-19. The Court found no evidence that “businesses with restaurant services such as Plaintiffs’ establishment who have implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less San Diego County).

In what could be read as rebuke to the Governor’s overly broad orders lacking in factual support, the Court after noting “essential businesses” that were allowed to stay open, quoted Supreme Court Justice Gorsuch’s concurring opinion in the Roman Catholic Diocese of Brooklyn stating, “who knew public health would so perfectly align with secular convenience.” In an ironic twist, a conservative Supreme Court majority has put adult entertainment clubs on par with churches as one of the few places Californians may be able to seek respite from the pandemic.

Restaurant owners’ glee however may have hit a roadblock. After the trial court clarified its ruling to apply to all restaurants not just ones in the adult entertainment clubs, the Appellate Court stepped in and stayed the ruling and will not consider the matter. Under the First Amendment, governmental action that infringes on First Amendment rights are subject to higher judicial security. Will the Appellate Court limit the lower court ruling to “Plaintiffs providing live adult entertainment” and businesses with “with restaurant service such as Plaintiffs?” Stay tuned. Either way a California Court has let the cat out of the bag and has questioned COVID orders where the punishment does not necessarily fit the crime.

If you have questions or would like more information, please contact John Moot at [email protected].

Is Qualified Immunity at Risk in the Coming Supreme Court Term?

Posted on: October 22nd, 2020

By: Phil Savrin

The year 2020 has been tumultuous and unpredictable in many ways.  Momentarily lost in the shuffle between the ongoing pandemic and the upcoming presidential election are the cries from some sectors of the community to “defund” police departments or alternatively shift funding priorities from law enforcement to more community-oriented programs. These calls grew to a crescendo in the aftermath of the high-profile deaths of George Floyd in Minnesota and Breonna Taylor in Kentucky.

In the midst of the emotionally laden protests, some rational voices called once again for the abolition of qualified immunity, the legal doctrine that protects public officials from being sued for damages unless they violated clearly established law. The main purpose of the immunity is to allow government employees to use their discretion reasonably in discharging their public duties without fear of civil liability. In the law enforcement context, for example, we would not want police officers to weigh whether they will be sued for damages when swift action is necessary to protect the public from harm. This means that police officers can be immune from civil suits even if they used excessive force, provided that the unlawfulness of the force was not clearly established in the law.

The recent calls to abolish qualified immunity have come from different sectors of society based on a belief that members of the public need to be compensated whenever unnecessary force is used by the police whether or not it was clearly unlawful. They argue that allowing compensation through damages, no matter the circumstances involved, would operate as a disincentive for unlawful conduct instead of operating with virtual impunity. The counterargument is that egregious uses of force are not protected by qualified immunity and removing the defense would result in reduced police interactions across the board thereby increasing the risk of harm to the public. After all, there is generally no requirement that police use any force at all even in the face of an immediate need to protect others from criminal activities.

Because qualified immunity is a doctrine created by the courts, it can be abolished in one of two ways:  reversal of precedent by the Supreme Court or by Congressional legislation. Early efforts to introduce bills in Congress to abolish the doctrine have appeared to peter out but there is at least one justice on the Supreme Court who has voiced a concern about the existence of qualified immunity. Periodically, Justice Thomas has written separate opinions noting his “growing concern” with the doctrine because it has evolved beyond the immunities that were in place in 1871 when Congress passed 42 U.S.C. § 1983 that allowed civil suits to be brought for constitutional violations. Court watchers were expecting there to be a landmark decision during the 2019 Term when multiple petitions for review of qualified immunity decisions were the subject of multiple court conferences only to have them all denied toward the end of the term. The lone dissenter was none other than Justice Thomas who reviewed the history of immunities and opined that the Supreme Court should take a closer look at the continuation of the qualified immunity defense. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

Because no other justices joined Justice Thomas’ dissent in Baxter, it can be inferred that they have little interest in overturning the firmly-established precedent and that it will take legislation from Congress to alter the course of the doctrine. These circumstances can change with vacancies opening up on the Supreme Court and changes in the office of the President and congressional leaders. For the time being, however, the doctrine lives on.

If you have questions or would like more information, please contact Phil Savrin at [email protected].

Who Falls Within The Ministerial Exception? Look To The Job Duties, Not The Job Title

Posted on: July 14th, 2020

By: Michael Hill

The Supreme Court has clarified the so-called “ministerial exception” to federal employment laws, such that it is not necessarily limited to leadership positions in a religious institution. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court held that the employment relationship between a religious organization and an employee who performs core religious duties, regardless of job title, is protected from government scrutiny. This means that federal employment discrimination laws are inapplicable to these employment relationships.

The ministerial exception derives from the First Amendment right to free exercise of religion. It is the separation of church and state put into practice. Since the Constitution forbids the government from establishing a religion, or impermissibly intermingling in religious affairs, the government cannot tell a religious organization whom it can or cannot employ to perform vital religious functions. To allow such government interference would threaten the very independence of religion that the First Amendment was designed to protect.

Some courts previously thought this exception applied only to “leadership” positions in a religious organization. Indeed, this was the dissent’s primary argument. The plaintiffs in Our Lady of Guadalupe School and the consolidated case of St. James School v. Biel both were teachers in parochial schools who alleged claims of unlawful discrimination in their employment (one based on age, the other based on disability). Neither employee had the title of “minister.” Yet the Supreme Court held that official job title is not dispositive. What matters for the ministerial exception is what the employee does. The teachers in these schools played a vital role in educating and guiding their students in the faith. That factor, for the majority, should be the focus of the analysis. The majority also held that courts should give deference to a religious institution’s explanation of the role its employees play in the life of the religion in question. Because the ministerial exception applies to these positions, the federal discrimination laws under which the plaintiffs sued have no authority.

For religious organizations, the ministerial exception can be a powerful defense to claims of unlawful employment discrimination. Looking forward, the Court’s opinion in Our Lady of Guadalupe School opens the door to applying the ministerial exception to other job positions, not just to parochial-school teachers, so long as the employee’s job involves performing vital religious duties. Such employers should review the job positions in their organization and seek the advice of counsel to be sure they are applying the law correctly.

If you have questions or would like more information, please contact Michael Hill at [email protected].

The End of Qualified Immunity?

Posted on: June 18th, 2020

By: Christopher S. Lee

Since its genesis in Pierson v. Ray, the qualified immunity doctrine has never been shy of critics. If you were to talk to the late Justice William Douglas (the lone dissenter in Pierson) about the growing movement striving to abolish immunity at the forefront of American jurisprudence today, it is hard to imagine that he would be at all surprised. The remaining eight justices in Pierson would tell you how qualified immunity is a pinnacle of public service and that a “policeman’s lot should not be so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.” Pierson v. Ray 386 U.S. 547 (1967). Yet, the intensity of the debates involving the qualified immunity doctrine has arguably reached its apex, and as of May 15, 2020, there were thirteen cert petitions pending in the United States Supreme Court urging the Court to reconsider the doctrine of qualified immunity. In light of the social movement sweeping the globe in relation to civilian-police relations, could this be the end of the road for qualified immunity?

The Supreme Court’s recent activity related to these thirteen cert petitions is instructive. Over the last few years, public interest groups, scholars, and lower judges have, metaphorically speaking, made a quiet whisper (at least in contrast to the raucous roar of the present movement) to the Supreme Court to reconsider the doctrine of qualified immunity. As a number of cert petitions continued to roll into the Supreme Court challenging the doctrine of qualified immunity, the Court nonchalantly, yet repeatedly rescheduled the conferences for these cases. It is certainly uncommon in recent history for the Court relist important petitions before deciding to grant or deny in the way it has done with these qualified immunity cert petitions. Many scholars and policy analysts speculate that this suggests the Court had been delaying these early petitions so it could consider them alongside several other high-profile cases raising the same issue.

At the May 15, 2020 conference, the Supreme Court ruled on three of the thirteen cases (the other ten were rescheduled to a later conference) denying cert in all three cases without comment from any of the justices. It was a move that stunned critics of qualified immunity, as Kelsay v. Ernst and Jessop v. City of Fresno are two of the three cases that were denied cert, and importantly, involved fairly liberal applications of qualified immunity in comparison to the thirteen cert petitions pending before the Court. Would this suggest that the Court was leaning towards upholding the doctrine in its entirety? Displaying the unusual continued delay on ruling on these cert petitions, the Court again delayed consideration of its qualified immunity docket on May 21, 2020, then again on June 4, 2020. It is hard not to believe that the tragic deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, and the social movements their deaths have fueled, have played a role in these delays and been weighing heavily in the minds of the justices. Also, what about the push from the legislative branch and bipartisan legislation that was presented to Congress earlier this month calling for “The End of Qualified Immunity?” Would not this be running in their minds as well?

It appeared to be a golden opportunity for the Court to steal the spotlight and exercise its inherent authority to weigh in the issue. Yet on the morning of June 15, 2020, the Supreme Court denied all of the remaining cert petitions raising the question of whether qualified immunity should be reconsidered; Justice Clarence Thomas was the only justice who expressed any desire to grant the cert petitions. Thus, the issue will not be heard in the Court’s term this October.

It is not entirely clear what motivated the Court to deny the petitions in the overwhelming fashion that it did. Citing to their prior criticisms of the doctrine, many anticipated that Justices Gorsuch, Sotomayor, and Ginsberg would also have been motivated to granted cert. It is impossible to know what is motivating the justices in their collective decision.  One hypothesis is that the Supreme Court, having seen the growing sentiment in Congress to pass legislation limiting and/or eliminating qualified immunity, decided to let the issue be resolved by the legislature. Perhaps the Court does not wish to further weigh into an issue that at its very core alleges the judiciary of having been too involved in policymaking in the first place.

With the judiciary out of the equation at least for the time being, all eyes will now turn to the remaining two branches of government. The sentiment around the oval office and chatter amongst advisors close to President Trump is that the president is unenthusiastic about legislation proposing to abolish qualified immunity. While proponents of qualified immunity unanimously view the rejection of the qualified immunity petitions as a win, we will nonetheless continue to monitor the activity of Congress and the ongoing debate as to qualified immunity in American jurisprudence.  If Congress does not act now, qualified immunity will likely be at the forefront during the Court’s next term.   

If you have questions or would like more information, please contact Christopher Lee at [email protected].