June 20, 2011
Supreme Court Action Today - Wal-Mart Class Actions, Global Warming Regulation, and More
The Supreme Court issued four opinions this morning. At least two of them are major end of term cases that shake up the legal landscape. The first of these is the Wal-Mart class action case, Wal-Mart Stores, Inc. v. Dukes (10-277). That case concerned whether a class could be certified for female employees seeking redress for alleged discrimination under Title VII of the Civil Rights Act of 1964. The basic claim was that Wal-Mart managers favored men in decisions regarding pay and promotion. The District Court certified the class and the Ninth Circuit affirmed.
The Supreme Court reversed, holding that the class was improperly certified. The commonality requirement of Federal Rule of Civil Procedure 23(a)(2) was not met as it requires a class wide resolution. A Title VII claim is individualized to the circumstances of the specific employment decision while this suit contemplates suing for millions of decisions at once. Without more, it’s uncertain whether there is a common answer to each of the grievances. The proof that bridges the individual claims to those of a common class is missing.
The only evidence of a general discrimination policy is a sociologist’s statistical analysis that Wal-Mart has a gender bias in employment decisions. The Court noted his testimony fell far short of establishing the significant proof that Wal-Mart had a general policy of discrimination. At best, the evidence shows that Wal-Mart left a lot of discretion in wages and promotion to individual managers. Given the size of the company, not everyone in the purported class would have suffered under that policy.
Back pay claims did not meet certification standards under Rule 23(b)(2) because they are too individualized to be considered under a single remedy. At best, such claims belong under Rule 23 (b)(3) where individuals can receive notice and decide whether to opt out of the class. Even this may not be practical as potential class membership is fluid. Any claims against Wal-Mart for back pay should be measured against individual relief.
The Court more or less agreed that the action should not go forward as a class. Justice Scalia delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. Justices Ginsburg, Breyer, Sotomayor and Kagan joined in Parts I and II of the opinion. Justice Ginsburg also filed an opinion concurring and dissenting in part, joined by the same Justices. The disagreement from these four comes whether the class has options under Rule 23(b)(3). Justice Ginsburg and the rest would have reserved that question for determination on remand rather than precluding the class strictly on the lack of commonality. Nonetheless, all Justices agree that the class should not go forward as it exists at this stage of the litigation. This is consistent with suggestions from the oral arguments.
The second major case announced is American Electric Power Co. Inc., et al. v. Connecticut (10-174). Several states, New York City, and three non-profit land trusts commenced lawsuits against certain power companies under federal common law of interstate nuisance for emitting significant greenhouse gasses that contributed to global warming. This, in turn, interfered with public rights. The remedy plaintiffs sought was a decree setting a cap on levels of emissions to be reduced over time. The Court held in an earlier case that the EPA had the authority to regulate carbon dioxide and other greenhouse gasses and ordered it to commence rulemaking to that effect. The EPA has committed to a final rule by May 2012.
The District Court dismissed the suits as presenting a political question but the Second Circuit reversed, holding that a justiciable claim had been presented and stated a claim under federal common law of nuisance. The Supreme Court split 4-4 on the issue of jurisdiction. That part of the Second Circuit’s decision was upheld. However, the Court reversed on the merits claim, holding that the Clean Air Act and the rulemaking action by the EPA displace any common law right that may have existed.
The Court acknowledged that a federal common law exists despite claims to the contrary in the venerable case of Erie v. Tompkins. Nonetheless whatever the claims, once Congress speaks on the issue, it precludes the courts from creating the controlling law under a common law theory. The Court further rejected the argument that federal common law is not displaced until the EPA acts. The Court was clear that it’s not the quality or reach of the Congressional action but the fact that the action speaks to the issue. The regulating agencies have the subject expertise compared to federal judges. They cannot investigate, call upon experts or otherwise duplicate the effort of the agency. Any subsequent complaints to the eventual rule can be handled through existing administrative law precedent and procedures. The Court did leave one option open to the plaintiffs. It said that the issue of proceeding on the basis of state law was still an open question.
Justice Ginsburg wrote the opinion joined by Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan. Justice Alito, joined by Justice Thomas, wrote an opinion concurring in part and concurring in the judgment. Justice Sotomayor did not participate.
The third case is Turner v. Rogers (10-10). After numerous child support proceedings in a South Carolina Family Court Turner was sentenced to 12 months in prison for willful civil contempt. Both he and Rogers were unrepresented by counsel in the civil contempt hearing. He claimed after he had completed the sentence that the Constitution should have allowed him appointed counsel. The South Carolina Supreme Court ultimately rejected this claim, holding that civil contempt proceedings do not require the same protections as criminal contempt proceedings.
The Supreme Court held that even though he completed his sentence, the case is not moot as it fell in the category where it was capable of repetition while evading review. The Fourteenth Amendment’s Due Process Clause does not automatically require provided counsel at civil contempt hearings in situations where both parties are not represented and the state provides alternative procedural safeguards.
The Court’s precedent does not help to answer the question in this context. What precedent does exists shows that right to counsel appears in cases involving potential incarceration, though none of them establish whether that right should be available in all such cases. The Court examined factors such as the nature of the private interest affected, the risk of erroneous deprivation of that interest, and the magnitude of any countervailing interest in not providing a substitute for procedural requirements. This analysis strongly argues for right to counsel in Turner’s circumstances.
The Court describes four substitute procedures that would satisfy due process: (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. The Court noted that since Turner had neither the benefit of counsel nor these alternative procedures, his rights were violated. The Court reserved the question of whether this applied when support is owed to the state as reimbursement for funds paid to the custodial parent.
Justice Breyer wrote the opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas dissented in his usual original intent analysis, joined by Justice Scalia. Chief Justice Roberts and Alito joined only Parts I-B and II of the dissent.
The final case is Borough of Duryea, Pennsylvania, et al. v. Guarnieri (09-1476). Guarnieri was fired by the Borough and brought a union grievance that led to his reinstatement. The Borough then issued directives on how Guarnieri should perform his work. He brought a second grievance and the arbitrator ruled that some of the directives should be modified or withdrawn. Guarnieri filed a §1983 suit alleging that the directives were filed as retaliation for filing the first grievance and violating his First Amendment right to petition the government. The District Court ruled that the grievances were constitutionally protected and he was awarded damages. The Third Circuit upheld the ruling but modified the award.
The Supreme Court noted that the Third Circuit’s precedent was out of line with every other Circuit to have ruled on the issue. The correct view of the law is that alleged retaliatory actions do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern. Even in cases where a public employee speaks as a citizen on a matter of public concern, that speech has to be balanced against the Government’s interest in promoting efficiency and effectiveness of public services.
Suits such of these seek results that contravene government policies or impair the performance of government. Essentially, Guarnieri’s interests as a private citizen must be balanced as noted. The case was vacated and remanded for further action. Justice Kennedy delivered the opinion, joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Thomas wrote an opinion concurring in the judgment. Justice Scalia wrote an opinion concurring in the judgment in part and dissenting in part.