U.S. Supreme Court Holds That Under Clean Water Act There Must Be A Continuous Surface Water Connection
Facts and Procedure: Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home. The Environmental Protection Agency informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act (CWA), which prohibits discharging pollutants into “the waters of the United States.” The EPA ordered the Sacketts to restore the site, threatening penalties of over $40,000 per day. The EPA classified the wetlands on the Sacketts’ lot as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The Sacketts sued, alleging that their property was not “waters of the United States.” The District Court entered summary judgment for the EPA. The Ninth Circuit affirmed, holding that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters and that the Sacketts’ wetlands satisfy that standard. The Sacketts’ appealed to the United States Supreme Court, which reversed, in an opinion that has a far reaching effect on local government.
Analysis: The United States Supreme Court held in Sackett v. Environmental Agency that CWA’s use of “waters” refers only to “geo- graphic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. In order to assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Justice Alito writing for a five to four majority pointed to the text of the CWA. He emphasized:
“…that the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers. But when the law is read as a whole, Alito continued, it is clear that some “adjacent” wetlands will also qualify as “waters of the United States.” This means, he wrote, that wetlands that are entirely separate from traditional bodies of water will not qualify. But the CWA will apply, Alito concluded, to wetlands that are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Justice Kavanaugh, in his dissent joined by three other Justices, argued that under the Court’s new “continuous surface connection” test, the Court’s new test is overly narrow and inconsistent with the Act’s coverage of adjacent wetlands. While rejecting the direct connection test he argued that the Act covers adjacent wetlands, and a wetland is “adjacent” to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.
Justice Kavanaugh, also noted in his dissent that “[b]y narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the CWA, with significant repercussions for water quality and flood control throughout the United States.” Sackett v. EPA, (USSC 21-454, 5/25/23)
See Amy Howe, Supreme Court curtails Clean Water Act, SCOTUSblog
Comment Howard: This case will have a very significant impact in Missouri, where there are hundreds of miles of wetlands separated from the Missouri and the Mississippi rivers by dikes, creating a situation where the wetland is separated from the water. Also, seems like the Little River Drainage District, in Southeast Missouri, where some 1,700 square miles of swamp land was drained, leaving the drained area separated from the drainage ditches by dikes makes the application of the CWA questionable. According to Earthjustice almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers.” Overall, it seems like lessening the scope of the CWA will make life easier for local government but this will have an adverse impact on the environment.
A Tax Sale Can Not Recover More Than The Taxes Due Plus Interest And Penalties
Facts and Procedure: Geraldine Tyler owned a condominium in Hennepin County, Minnesota, that accumulated about $15,000 in unpaid real estate taxes along with interest and penalties. The County seized the condo and sold it for $40,000, keeping the $25,000 excess over Tyler’s tax debt for itself. Tyler filed suit, alleging that the County had unconstitutionally retained the excess value of her home above her tax debt in violation of the Takings Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment. The District Court dismissed the suit for failure to state a claim, the Eighth Circuit affirmed and the U. S. Supreme Court granted cert, reversing.
Analysis: Chief Justice Roberts writing for a unanimous court in Tyler v. Hennepin County, Minnesota, holding that at this initial stage of the case (motion to dismiss), Tyler need not definitively prove her injury or disprove the County’s defenses because she has plausibly pleaded on the face of her complaint that she suffered financial harm from the County’s action, and that is enough for now.
Comment Howard: This case has no impact in Missouri because any amount bid in excess of the taxes and sale costs is considered ‘surplus.’ After the sale, records of those funds are maintained by the Commission and they are responsible for distribution. Surplus can only be released to owners or lienholders. Unrelated third-parties cannot collect surplus funds. (RSMo §140.230)
Of great interest to local government is the concurring opinion by Justice Gorsuch, joined by Justice Jackson (one conservative and the other liberal) who would have also held that the pleadings stated a cause of action for a violation of the excessive fines provision of the Eighth Amendment. The concurring opinion lays out in clear language the requirement to plead such a violation. Considering the litigation, we have had in Missouri over excessive fines the concurring opinion may be of some interest. Tyler v. Hennepin County, (USSC 21-166, 05/25/23).
For additional information see: Amy Howe, Justices rule Minnesota county violated takings clause, SCOTUSblog (May. 25, 2023, 12:09 PM), https://www.supremecourt.gov/opinions/22pdf/21-1449_d9eh.pdf
Threat Collides With Free Speech – Threat Wins Sort Of!
Facts and Procedure: V.B., a student and basketball player, testified that, “the day before [the basketball game], [D.J.T.S.] told a lot of people not to come to school.” The next day during science class, D.J.T.S. told her about “his” gun, and that he was going to “cut the cameras” at the basketball game and “kill people.” He showed her pictures of the gun and said he was going to shoot “180 people or more.” He also asked her “a lot of questions about the game.” She reported the threat to school officials because D.J.T.S.’s statements made her feel scared and uncomfortable about what might happen.
D.C., a student in the same science class, testified that D.J.T.S. threatened to shoot up “the basketball game that was later that night at our school.” When the incident was being investigated, D.C. gave a statement to the vice-principal regarding the threat. Another student, P.K., testified that D.J.T.S. said he had a gun during the science class and that he was going to shoot up the girls’ basketball game.” When questioned about the incident, P.K. told school officials that he thought D.C. was joking.
Dr. Sarah Barmann-Smith, the principal of Bode Middle School, testified that she called D.J.T.S. into the office on December 15, 2021, to investigate reports that he had warned students not to come to school because he was going to use his weapon at the school basketball game. D.J.T.S. acknowledged making the statement. He first told Barmann-Smith that he didn’t know why he said it and then subsequently said he was joking about the shooting. In response to questions, he showed Barmann-Smith various pictures on his phone of him holding a gun. He told her that the gun belonged to his father. D.J.T.S. was taken into custody by the school resource officer (a St. Joseph police officer), shortly after talking with Barmann-Smith.
D.J.T.S. did not put on any evidence at the adjudication hearing. After closing arguments, the juvenile court found the allegations to be true beyond a reasonable doubt and assumed jurisdiction over D.J.T.S. The juvenile court found that D.J.T.S.’s comments “went beyond making a [joke].” The juvenile court noted that D.J.T.S. “actually showed pictures that logically would make people think that he has the capability to follow through with those statements” and acknowledged that two of the three students who heard the threat were concerned enough to pass the information to others. The court also found that D.J.T.S. communicated a plan when he stated that he would “cut the cameras” prior to commencing the shooting. The juvenile court concluded that “it’s reasonable to infer that if [D.J.T.S.] would have not been brought into custody and would have been free in light of that information of the pictures, the statements, the threat, that it’s highly likely that the basketball game would not have taken place.”
After a dispositional hearing, the court placed D.J.T.S. on probation under supervision by the Juvenile Officer. D.J.T.S. appealed to the Western District.
Analysis: D.J.T.S. contends the court erred in determining that his statements constituted a “true threat” outside the protections of the First Amendment. The Western District, starts its analysis by determining that the proper standard for review is for a juvenile is the same as for an adult. The juvenile officer must show that D.J.T.S. “(1) was aware he was communicating an express or implied threat to cause an incident endangering human life and (2) consciously disregarded a substantial and unjustifiable risk of causing the evacuation or closure of the school.” Evidence of declaratory statement[s]” can indicate the speaker’s “awareness of the intent to cause danger to human life.” In addition, .“[T]he desired reaction of the listener” may also “constitute some evidence of the intent of the person making the statement.”. Additionally, it is not necessary for the building to have been evacuated or placed on lockdown in order to prove the offense of making a terrorist threat in the second degree.
Applying the above standard, the Western District concluded that the record showed he made a true threat. The Western District in applying the First Amendment Free Speech Clause noted that while the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” but the protections afforded by the First Amendment, are not absolute such as speech when “…expressed as part of a crime, obscene expression, incitement, and fraud.” A true threat is proven by evidence of a declaratory statement that expresses “an intent to cause an incident involving danger to human life,” and showing that the listener was placed “in fear that the threat would be carried out.”
In this case, D.J.T.S. communicated a true threat by detailed threats to commit a violent crime to shoot up the Bode Middle School basketball game and vowing to kill more than 180 people. He warned students not to come to school, showed photos of himself holding his gun, and repeated the threat to multiple students his science class. Based on this evidence, the juvenile court drew the reasonable inference “that if [D.J.T.S had] not been brought into custody and would have been free in light of the information of the pictures, the statements, the threat, it’s highly likely that the basketball game would not have taken place.” Therefore, there was sufficient evidence for the juvenile court to find that D.J.T.S. committed the offense of making a terrorist threat in the second degree. In the Interest of D.J.T.S. v. Juvenile Officer, (WD85142, 04/25/23)
Comment Howard: This is a good case to have in your local government tool box because of the increased frequency of threats to government property or meetings. Usually, threats require an immediate response (no time for hours of research) so you might want to keep this opinion on speed dial. Also, you should consider distributing the opinion and a summary to police, bailiffs, 911 telephone operators, public officials, and security guards. The Opinion is short, well written and impactful.
In Order To Claim Retaliation For Filing Under Workers Compensation Law The Retaliation Must Occur When You Are An Employee
John Lisle appealed the circuit court’s judgment in favor of Meyer Electric Co., Inc., on his claim Meyer Electric violated Section 287.7801 when it refused to hire him because he exercised his rights under Chapter 287 during his previous employment with Meyer Electric. Lisle asserted that Meyer Electric refused to hire him in retaliation for exercising his rights under Chapter 287 during their prior employment relationship. The Missouri Supreme Court held that the words “employer” and “employee” as used in Section 287.780 are defined more narrowly then the ordinary dictionary meaning. Protections and sanctions in Section 287.780 apply only to employers and employees in a current employment relationship. Because it is an uncontroverted material fact Mr. Lisle was not an employee of Meyer Electric when it refused to hire him in June 2019, Meyer Electric established its right to judgment, as a matter of law. Accordingly, the circuit court’s judgment is affirmed. Lisle v. Meyer Electric Co., (SC99670, 05/16/23)
Union Not Protected Under NLRB When It Abruptly Called A Strike And Damaged Property In Transit
Facts and Procedure: Northwest delivers concrete to customers in Washington State using ready-mix trucks with rotating drums that prevent the concrete from hardening during transit. Concrete is highly perishable, and even concrete in a rotating drum will eventually harden, causing significant damage to the vehicle. Glacier’s truck drivers are members of the International Brotherhood of Teamsters Local Union No. 174. After a collective-bargaining agreement between Glacier and the Union expired, the Union called for a work stoppage on a morning it knew the company was in the midst of mixing substantial amounts of concrete, loading batches into ready-mix trucks, and making deliveries. The Union directed drivers to ignore Glacier’s instructions to finish deliveries in progress. At least 16 drivers who had already set out for deliveries returned with fully loaded trucks. By initiating emergency maneuvers to offload the concrete, Glacier prevented significant damage to its trucks, but all the concrete mixed that day hardened and became useless.
Glacier sued the Union for damages in state court, claiming that the Union intentionally destroyed the company’s concrete and that this conduct amounted to common-law conversion and trespass to chattels. The Union moved to dismiss Glacier’s tort claims on the ground that the National Labor Relations Act (NLRA) preempted them. The Washington Supreme Court agreed with the Union, reasoning that “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.” Glacier appealed to the U. S. Supreme Court.
Analysis: The question before the Court was whether or not the Teamster took “reasonable precautions” to protect Glacier’s property from “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.” Citing NLRB law the Court held that has long held that unions that fail to take “reasonable precautions” may not be protected by the NLRA when strikes lead to damage to perishable goods or property. Glacier Northwest, Inc. v. International Brotherhood of Teamsters, (USSC 21-1449 (6/1/2023)
Comment Howard: While local government is not subject to the NLRB Rules it struck me that suing or the threat of suing the union for damages could serve as a deterrent.
PBT Reading Is Admissible For Establishing Probable Cause
Factual and Procedural Background: Deputy Cole Mazer (Officer), while responding to a report of a domestic assault at the Wilmoth residence, was informed that Mr. Wilmoth had left the residence in a utility terrain vehicle (“UTV”) and was given a description of Mr. Wilmoth and the UTV. Later, the Officer then observed a UTV on a public gravel road and caught up to him “observed the UYV make a left turn without signaling.” The Officer initiated a traffic stop.
During the traffic stop, Deputy Mazer detected a moderate odor of alcohol on Mr. Wilmoth’s breath and observed his eyes were bloodshot and watery. Mr. Wilmoth admitted to consuming a couple of beers with dinner “around” three and a half hours earlier. The deputy’s observations prompted him to request that Mr. Wilmoth take a preliminary breath test. Mr. Wilmoth complied, and the test result was 0.11 percent. Mr. Wilmoth refused to perform other field sobriety tests.
Deputy Mazer then arrested Mr. Wilmoth for driving while intoxicated and transported him to the county jail. The Officer then administered two breath tests. The result of the first test was a blood alcohol content of 0.082 percent, and the second, administered approximately five minutes later, was 0.086 percent.
Pursuant to Section 302.505, the director of revenue notified Mr. Wilmoth his driving privilege would be suspended for being arrested upon probable cause to believe he was operating a motor vehicle with a blood alcohol content in excess of 0.08 percent. After the administrative hearing Mr. Wilmoth requested, the administrative hearing officer sustained the director’s suspension of Mr. Wilmoth’s driver’s license. Mr. Wilmoth then requested a trial de novo in the circuit court.
During a bench trial, the circuit court allowed Deputy Mazer to testify, over Mr. Wilmoth’s objection, that the preliminary breath test showed Mr. Wilmoth’s blood alcohol content was greater than 0.08 percent.
Analysis: Wilmoth argued that the holdings of the Southern District in 2013 in State v. Eisenhour, and State v. Duncan, in the Eastern District, supported his claim that permitting the deputy to testify as to the numerical result of the test or that the result was greater than 0.08 percent would be to use the preliminary breath test as evidence of blood alcohol content, in violation of Section 577.021.3’s prohibition against its use for that purpose. Although the Eisenhour and Duncan decisions do not support Mr. Wilmoth’s claim of error, it is noted that the appeals’ decisions regarding the admission in evidence of the results of a preliminary breath test are inconsistent. The court of appeals has limited admission of the result of a preliminary breath test to evidence of whether a breath test is positive or negative for the presence of alcohol. See, e.g., State v. Long, 599 S.W.3d 908, 919 (Mo. App. 2020) (“Defendant also was correctly informed that the [preliminary breath test] is used only to determine whether a breath test is positive or negative for alcohol.”). In contrast, in Roux, the court of appeals held it was an abuse of discretion not to admit the “actual, numerical result” of a preliminary breath test for the purpose of establishing probable cause because “the actual numerical value of the test is what makes the result of the portable breath test relevant to the issue of probable cause.” Roux, 554 S.W.3d at 418- 19. It is a matter of first impression for this Court as to whether the numerical result of a preliminary breath test is admissible for the purpose of establishing probable cause, which must be proven for the director of revenue to suspend or revoke a driver’s license pursuant to Section 302.515.
Pursuant to this section, law enforcement officers administer preliminary breath tests to “detect the presence of alcohol on a person’s breath” and determine whether there exists probable cause to arrest. State v. Stottlemyre, 35 S.W.3d 854, 858 (Mo. App. 2001). Subsection 2 of section 577.021 requires the same law enforcement officers to “make all reasonable efforts to administer a chemical test to any person suspected of operating a vehicle or vessel involved in a collision or accident which resulted in a fatality or serious physical injury . . . .” Subsection 3 of section 577.021 provides a preliminary breath test administered pursuant to subsection 1 of the statute is admissible for the purpose of establishing “probable cause to arrest and as exculpatory evidence” but inadmissible “as evidence of blood alcohol content.” Section 577.021.3 provides:
A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of Sections 577.019 and 577.020 shall not apply to a test administered prior to arrest pursuant to this section.
(Emphasis added).
When an officer administers a preliminary breath test under Section 577.021.1, the test produces a numerical quantification of the alcohol content of a person’s blood, in this case 0.11 percent. Accordingly, when making a probable cause determination, an officer knows the numerical result of the preliminary breath test. The higher the numerical result is, the more reasonable the officer’s belief that the suspect has committed an alcohol-related offense. “A reasonable officer, when faced with a [preliminary] breath test result of [0].08 percent or more would be justified in believing the driver was impaired so as to support a finding of probable cause.” See Roux, 554 S.W.3d at 418. Because courts assessing whether an officer has probable cause to arrest for an alcohol-related offense must consider the information known to the officer at the time of arrest and, in this case, Deputy Mazer knew the preliminary breath test showed a blood alcohol content of 0.11 percent, that result is admissible evidence. The fact a preliminary breath test cannot be admitted as evidence to prove a defendant’s blood alcohol content did not require the circuit court to exclude Deputy Mazer’s testimony. In providing a preliminary breath test is admissible for some purposes but not another, Section 577.021.3 permits limited admissibility of a preliminary breath test. It is common that evidence may be admitted for one purpose and not others, and courts have consistently held that, in such circumstances, the evidence should be admitted for its proper purpose.
New Test For What Constitutes Accommodation Under Title VII
Facts and Procedure: Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service. Groff’s position generally did not involve Sunday work, but that changed after USPS agreed to begin facilitating Sunday deliveries for Amazon. To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries. After Amazon deliveries began at that station as well, Groff remained unwilling to work Sundays, and USPS redistributed Groff’s Sunday deliveries to other USPS staff. Groff received “progressive discipline” for failing to work on Sundays, and he eventually resigned.
Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.” The District Court granted summary judgment to USPS. The Third Circuit, affirmed based on the U. S. Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison, which construed the phrase “undue hardship” to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” The Third Circuit found the de minimis cost standard had been met, concluding that exempting Groff from Sunday work “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” Groff appealed to the U. S. Supreme Court.
Analysis: The Court reexamines the meaning of the phrase “undue hardship” which, was held in Trans Hardison, some 50 years ago, to mean that an employer was required make an accommodation for religion only if the accommodation was de minimis. In Hardison, the Court held that virtual any cost to the employer or inconvenience to worker schedules was sufficient. In the case, now before the Court, it held that an employer that denies a religious accommodative must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.
Justice Alito, writing for a unanimous Court stated that: “…it is enough to say that what an employer must show is that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. “Courts must apply the test to take into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.” The courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that it would use in applying any such test.
The Court also clarifies several recurring issues.
Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business. A court must analyze whether that further logical step is shown. Further, a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered “undue.” Bias or hostility to a religious practice or accommodation cannot supply a defense. “
“Second, Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations. Faced with an accommodation request like Groff ’s, an employer must do more that conclude that forcing other employees to work over- time would constitute an undue hardship. Consideration of other options would also be necessary.”
“’A more demanding standard, Alito added, is also more consistent with the text of the phrase “undue hardship.” The term “hardship,” Alito wrote, “is more severe than a mere burden.” And if the hardship is “undue,” Alito continued, it must be “excessive” or “unjustifiable” – which is something “very different from a burden that is merely more than de minimis, i.e., something that is ‘very small or trifling.’”
Having clarified the Title VII undue-hardship standard, the Court leaves the context-specific application of that clarified standard in this case to the lower courts in the first instance.
“Sotomayor, joined by Jackson, wrote separately to note that although Groff had asked the justices to hold that the employer must show “undue hardship to its business” from accommodating an employee’s religious practices, the court on Thursday had indicated only that the employer must show “undue hardship on the conduct of the employer’s business” – which, Sotomayor emphasized, could include burdens on the business’s employees. “Indeed,” Sotomayor stressed, “for many businesses, labor is more important to the conduct of the business than any other factor.’” Groff v. DeJoy, (USSC 22-174, 6/29/2023)
For additional analysis. https://www.washingtonpost.com/politics/2023/06/29/supreme-court-sabbath-work-religious-protections/#:~:text=In%20his%20opinion,any%20such%20test.%E2%80%9D
Or: Amy Howe, Justices rule in favor of evangelical Christian postal worker, SCOTUSblog (Jun. 29, 2023, 4:32 PM), https://www.scotusblog.com/2023/06/justices-rule-in-favor-of-evangelical-christian-postal-worker/
Comment Howard: You should update your HR manual to reflect the change to the ADA. Also, a review of the Missouri Department of Labor guidance on Disability Discrimination suggests there is no impact on Missouri law. See:
List Of Major Supreme Court Decisions In 2023
The New York Times in its June 29, 2023 Edition, has a list of Major Supreme Court decisions in 2023, with links to the case, many of which impact local government. Key cases affecting local government are reviewed in this newsletter or have been previously been reviewed. The NY Times, article also shows where the public stands across the political spectrum.
First Round Of Litigation Over Whether Or Not A Public Water Supply District Has The Exclusive Right To Serve Property In Its District?
Public Water Supply District No. 1 (PWSD), sued the City of Springfield, acting by and through City Utilities (CU), alleging that CU was providing water in its service area in violation of state law that provided the PSWD was the exclusive provider of water in the District. CU filed a motion to dismiss alleging that the lawsuit failed to denominate that it was a declaratory judgment and that it did not have a legally protectable interest because the statute does not confer a private cause of action. The trial court sustained CU’s motion and PSWD appealed to the Southern District.
The Southern District reversed and remanded holding that a declaratory judgment label is not required in the petition because, “It is the facts stated in the petition, along with the relief sought, which under our system of code pleading are to be looked at to determine the cause of action, rather than the form of the petition.” With respect to the claim that the PSWD does not have a legally protectable interest the that PWSD-1 has an “exclusive” right to provide water services to the Disputed Areas and Springfield’s provision of water to the Disputed Areas is impinging this right, is the essence of this claim. The Court found that PWSD characterization of this alleged impingement in the petition as a “Violation” of Sections 247.160, 247.170, or 247.172 was sufficient to state a claim. Case remanded for further proceedings consistent with the Opinion. Public Water Supply District No. 1 v. City of Springfield, (SD37695, 06/23/23)
Colorado CADA Loses Another Challenge
Facts and Procedure: Colorado Anti-Discrimination Act (CADA) prohibits all “public accommodations” from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait. The law defines “public accommodation” broadly to include almost every public-facing business in the State. Either state officials or private citizens may bring actions to enforce the law. And a variety of penalties can follow any violation.
Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the over- all message” her business will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Ms. Smith’s websites “will know that the websites are her original art- work;” and “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”
Ultimately, the district court held that Ms. Smith was not entitled to the injunction, the Tenth Circuit affirmed and Ms. Smith appealed to the Supreme Court.
Analysis: Justice Neil Gorsuch wrote for the majority, in a 6 to 3 decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. Based on the stipulated facts the Court agreed with the Tenth Circuit that the wedding websites Ms. Smith seeks to create qualify as pure speech protected by the First Amendment under this Court’s precedents. Simply put, Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide. The State intends to compel her to create custom websites celebrating other marriages she does not agree with. She must choose between following her conscience, which means only creating wedding websites for opposite-sex couples, or following the law and violating her religious beliefs. Therefore, she faces sanctions for expressing her own beliefs and facing sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports, and paying monetary fines. That is an impermissible abridgement of the First Amendment’s right to speak freely.
“Gorsuch conceded that in some cases it may be difficult for courts to determine “what qualifies as expressive activity protected by the First Amendment.” But this is not one of those cases, he insisted, because Colorado and Smith both agree that Smith’s wedding websites would be expressive activity.”
Sotomayor’s “…dissent argued that the Constitution “contains no right to refuse service to a disfavored group.” Colorado’s public accommodations law, she contended, only bars business owners from discriminating against members of the public based on (among other things) their sexual orientation. It does not regulate or compel speech at all. If a business owner like Smith “offers [her] goods or services to the public,” Sotomayor suggested, she “remains free under state law to decide what messages to include or not to include.” But what Smith can’t do, Sotomayor stressed, is “offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.’” Quoting from Amy Howe, Scotus blog. 303 Creative LLC v. Elenis, (US 21-476 (2023), 06/03/23)
Comment Ragan: Whether it is free speech or issues involving religious accommodation you need to be extremely vigilant in ensuring you are compliant with the Supreme Court outlook on these issue or you could end up litigating these issues in court and losing.
MMAA Newsletter 