Minority Firefighters Race Against The Clock

Fourteen years ago the city of Chicago gave an exam to applicants to their firefighter jobs. 37% of those applicants were black. When Chicago got the results, it bracketed all applicants into three groups, and said it would be hiring from the high-score group first. Only 11.5% of the applicants in that group were black, and understandably they sued.

However, those black applicants waited until after Chicago had hired some firefighters, filing suit 430 days after Chicago had announced the results and the groupings. That delay, Chicago says, means that the applicants complained after the 300-day statute of limitations on racial employment discrimination had run out. The black applicants countered that their lawsuit was filed only 181 days after Chicago had hired firefighters on the basis of the test, and that that hiring decision was the discrimination of which they complained.

This dispute about the timing of the statute of limitations today went before the U.S. Supreme Court.

Most of the Justices seemed to favor the applicants’ positions, including even conservative members of the Court. Chief Justice John Roberts seemed bothered by the idea that, even if the second tier of applicants had been told they would likely be hired, those applicants did not file suit as soon as the racially-uneven pools were announced. Worse, as pointed out by Justice John Paul Stevens, if the city of Chicago announced that it would only hire firefighters with high school degrees (assuming there was racial disparity in graduation rates), no one could file a complaint after 300 days. Even someone who only later decided to become a firefighter would have no right to complain about racial discrimination. If a city giving a racially-biased test made it 300 days without complaint, it could continue to use the test until the end of time.

On the other hand, some Justices seemed worried about the consequences of a decision in favor of the applicants. Justice Roberts worried that every time Chicago made a hiring decision it would give black applicants another opportunity to sue. Worse, a city receiving test results with an apparent racial bias would have to choose between using the test for hiring, and risk facing lawsuits whenever it hired someone, or throwing out the test, and potentially facing a lawsuit like the one brought by white New Haven, Connecticut, firefighters last year. Roberts conceded, however, that cities face potential lawsuits over all kinds of issues, and they have to figure out the best course of action to take.

Overall, though, the Justices seemed likely to rule in favor of the black applicants. Justice Antonin Scalia went as far as to argue with the applicant’s lawyer about whether the announcement of results is a violation at all. That announcement, according to Chicago, is the only violation.

The case is Lewis v. Chicago.

Supreme Court Strikes Down Limits On Corporate Campaign Ads

In what Justice John Paul Stevens called a "radical departure" from earlier law, the Supreme Court today ruled that any campaign finance regulation that treats corporations differently from individual citizens is unconstitutional.

The decision came in the case of Citizens United v. Federal Election Commission (FEC), in which a private corporation tried to produce and broadcast a "documentary" critical of then-Senator Hillary Clinton during the 2008 presidential primary. Under the 2002 Bipartisan Campaign Reform Act—also known as McCain-Feingold—any broadcast of the documentary, because it was funded by a corporation, would be illegal within 30 days of the primary.

Justice Kennedy, writing for himself and four other Justices, called the regulation a "ban on political speech," and said that the government "ban[s] political speech simply because the speaker is an association that has taken on the corporate form." He rejected arguments that had been accepted in Supreme Court precedents that corporations could be regulated more tightly because they had special legal advantages, "such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets." Kennedy quoted Justice Antonin Scalia's dissent from an earlier case, writing that "the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights."

"The First Amendment confirms the freedom to think for ourselves," Kennedy wrote, adding that "when Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."

Justice Stevens wrote a lengthy dissent, harshly attacking the bases of the Court's opinion. He pointed out that the law was not an outright ban, as Citizens United could have used PAC funding, aired the ad earlier, or refused contributions from for-profit corporations. He also noted that the Supreme Court has previously upheld speech restrictions on other groups based on their identities, such as students, prisoners, and members of the armed forces. The majority's logic, Stevens wrote, "would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders."

Justice Stevens also criticized the majority for producing a broader decision than was necessary. Citizens United had only asked for a special waiver for its documentary, but the majority chose to take the opportunity to strike down the entire law.

The Court did choose to uphold a provision of the law that required some disclosures when corporations make expenditures. Under the law, campaign ads not made by a candidate must reveal the name of the group that funded it, and any person or corporation that spends more than $10,000 in a single year on campaign ads must make a filing with the FEC listing any individuals who contributed more than $1,000.

This disclosure provision was upheld by eight Justices, with only Justice Clarence Thomas dissenting. Justice Thomas cited a right to anonymous speech and expressed concern about retaliation against individual donors, referring to harassment and property damage exacted upon supporters of California's Proposition 8.

Senate Republicans Wary Of Possible Climate Change Pledge In Copenhagen

Meagan Wiseley - University of New Mexico/Talk Radio News Service

While President Barack Obama is taking the Environmental Protection Agency's ruling of the dangers and the toxicity of CO2 emissions and greenhouse gasses (GHGs) to Copenhagen climate change conference, Senate Minority Whip Jon Kyl (R-Ariz.) told reporters Thursday that the Senate must ratify any proposed climate change pledge that President Barack Obama will make during his visit.

“Any action that would be binding on the U.S., in the form of an international agreement, will of course have to be ratified by the U.S. Senate,” Kyl said at a press conference Thursday.

Sen. Lindsey Graham (R-S.C.) spoke out against the possibility of the EPA and President Obama making any law on CO2 emissions or climate change.

“We’re not going to allow the Executive Branch or the Environmental Protection Agency, through the Clean Air Act or any other act, appropriate themselves the power to make laws to govern the people of the U.S.,” Graham said.

Ranking Member of the Senate Energy and Natural Resources Committee Lisa Murkowski (R-Alaska) said she will file a resolution of disapproval in hopes of stopping the EPA from regulating GHGs.

Supreme Court May Punt On Property Forfeiture Case

By Laura Smith

The Supreme Court heard arguments today in a case on forfeiture, weighing the constitutionality of an Illinois law that allows the confiscation of property associated with drug crimes.

Paul Castiglione argued for the state of Illinois, saying that three Chicago residents’ cars were confiscated by Chicago police pursuant to the Illinois Drug Asset Forfeiture Procedure Act (DAFPA). The people weren’t charged with crimes and had to wait more than a year without a hearing and without a chance to get their cars back. He said their cars had eventually been returned.

The Justices started the arguments by asking whether the plaintiffs cars had been returned, however, since if the plaintiffs no longer had claims against the state the case would be rendered moot. “This case is not moot because subsequent to the Seventh Circuit decision in this case, the plaintiffs filed an amended motion for class certification, specifically asking for damages and restitution, in addition to declaratory and injunctive relief,” Castiglione said. He argued that these additional requests, beyond simply wanting their cars back, mean that there is an ongoing case for the court to consider.

Thomas Peters, attorney for the Chicago residents argued that the case was not class action, but that it was still a class of people in Chicago He said that they had initially filed a request to make the case a class-action suit, but the district court denied that request. Peters said they did not appeal that decision because it was made at the time that the district court also rejected their arguments about the forfeiture law.

Justices Breyer and Alito did not seem concerned with the mootness question, however. Justice Breyer several times suggested that it was unfair for an innocent bystander whose car was used in a crime, and who may depend on his car for his livelihood, might not be able to challenge the seizure of the car for an extended period of time. Justice Alito, on the other hand, seemed worried about the burden placed on police if they had to justify seizures within a short time; such a hearing might require that police disclose ongoing criminal investigations, such as wiretapping of the actual owner of the car.

Justice Stevens appeared to want the case dismissed on the basis of mootness, noting the difficulties examining the facts of the plaintiff’s seizures when the plaintiffs had already gotten their cars back. “We are trying to get into the case much earlier than we should, it seems to me,” Stevens said.

The case, Alvarez v. Smith, will likely be decided later this year.

Supreme Court Considers Effects Of Bad Legal Advice

When Jose Padilla was arrested in Kentucky in 2001 for drug trafficking, his lawyer advised him to plead guilty in exchange for a shorter sentence. Padilla is a legal permanent resident, having immigrated from Honduras 40 years ago, and his lawyer advised Padilla that the guilty plea would not affect his immigration status. Padilla pleaded guilty in October 2002 and was sentenced to 5 years in prison and 5 years of probation.

The lawyer's advice, unfortunately, was wrong. Drug trafficking is an "aggravated felony," meaning Padilla lost any benefit of his immigration status and would have no defense should the government choose to deport him. In 2004, Padilla filed a motion in court in Kentucky asking to withdraw his guilty plea, arguing that he would not have plead guilty if he had known about the immigration consequences.

The general rule for legal advice at trial is that a lawyer must fully inform a client of the direct consequences of a guilty plea, such as jail time, but the lawyer has no duty to explain "collateral consequences" like losing the right to vote or own firearms. The Supreme Court Tuesday heard arguments that loss of immigration status is such an important issue—and was so important to Padilla's decision to make the plea—that a lawyer's incorrect advice warrants overturning the conviction and possibly bringing a new trial.

The Supreme Court Justices seemed to primarily be concerned that if Padilla is allowed to take back his plea it would expand the job of a court-appointed attorney to include giving all sorts of legal advice rather than letting them focus on getting a favorable verdict in the specific case for which they are assigned. Justices Antonin Scalia and Samuel Alito asked the attorneys several times whether incorrect advice on child custody and confiscation of property could lead to new trials. Padilla's lawyer argued that, if that advice was key to the defendant's decision to plead guilty, it could be grounds for a new trial. He further pointed out that a lawyer is always free to say that he simply does not know or refuse to answer entirely.

The lawyer for Kentucky, at one point comparing the collateral issues to land mines, nevertheless argued that the Sixth Amendment, which provides the right to an attorney at trial, only provided that attorney for the purpose of countering the government's prosecution. In other words, anything the lawyer says about collateral consequences is outside of his mandated role under the Sixth Amendment and is therefore not grounds for reversal.

The Supreme Court will hand down its decision in the case later this year.