NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 13th of May, 2019. Good morning to you, I’m Nick Eicher.
MEGAN BASHAM, HOST: And I’m Megan Basham. We expect rulings from the Supreme Court this morning. Those we’ll report to you tomorrow.
Now before Mary Reichard took off for vacation, she left for us this week and next, the rest of the oral arguments the court has heard.
Today, three oral arguments from March. Next week, we will hear the last of them.
If you’ve listened every week since the first Monday in October, and stick with it through next week, you’ll have heard a little something about every single oral argument this term.
It’s been a total of 70, so that’s quite an accomplishment!
EICHER: It is, and so now, let’s set up our first case (Mitchell v Wisconsin) for today.
The year is 2013, Sheboygan, Wisconsin. Police received a report that Gerald Mitchell was drunk and suicidal. A neighbor reported seeing Mitchell stagger into his van and drive away.
Police caught up to him stumbling around on the shore of Lake Michigan. Mitchell slurred his speech and admitted he’d parked the van because he was too drunk to continue driving it.
A quick records check revealed to police this wasn’t his first offense. He’d had seven prior DUIs and served some prison time.
BASHAM: Police did a preliminary breath test. It showed Mitchell’s blood alcohol content 12 times above the legal limit.
We should note here that for those with three or more prior DUIs, 0.02 blood-alcohol concentration is the limit. Typically, it’d be 0.08 BAC.
Nevertheless, Mitchell, by any standard, was too drunk to drive.
So police took Mitchell into custody, and during that time he became increasingly incoherent. They took him to the hospital.
EICHER: At the hospital, an officer read to Mitchell the state’s implied consent law. That is, implied consent to have blood drawn for evidence.
But Mitchell was so drunk, he lost consciousness and didn’t understand what the officer read.
Nevertheless, police asked hospital workers to draw Mitchell’s blood. The more accurate test showed Mitchell’s BAC was now 0.22, and that’s eleven times the legal limit.
Our legal-affairs correspondent Mary Reichard now has today’s Legal Docket.
MARY REICHARD: That blood-draw test is at the legal heart of the case here. The reason is that prosecutors used the test as the crucial piece of evidence to convict Mitchell of driving drunk. That’s because roadside sobriety tests aren’t very accurate, so they aren’t admissible in court.
But Mitchell says he didn’t consent to have his blood drawn. And the police had no warrant. That, he says, is a violation of his Fourth Amendment protection against unreasonable search and seizure.
But the state of Wisconsin says that’s unreasonable. Consent in these cases is implied, so no warrant is necessary.
Listen to assistant Attorney General Hannah Jurss, arguing for Wisconsin.
JURSS: It’s an atypical type of consent, because it has to be. Because we are only and exclusively dealing with intoxicated people. So the normal, what I would call the typical, at-the-scene consent that you might expect in other circumstances simply can’t work in this context because we’re only dealing with intoxicated people. And so it makes sense to evaluate his actions while he’s driving because that’s when he’s making all of the decisions that’s putting other people’s lives at risk.
Jurss went on to argue all 50 states have implied consent in some form or another to test for evidence of drunk driving. You drive on public roads, her argument went, you consent to being tested for impairment.
Three justices didn’t sound convinced.
One of them was Justice Ruth Bader Ginsburg. She called implied consent a “fiction,” and then posed a hypothetical to remove the implied part of consent.
Then Chief Justice John Roberts had a rejoinder.
GINSBURG: Suppose he had a card on his windshield that says: If I’m unconscious, I do not consent to a blood draw. [laughter]
JURSS: That could very well make a difference.
ROBERTS: Well there may not be consent but you’d have pretty good evidence wouldn’t you? I mean, you’d have a card saying anticipating being unconscious while he’s driving? [laughter]
Several friend-of-the-court briefs pointed to the same practicality: there’s just no other less invasive way to obtain evidence for blood alcohol content than the way it was done here. Often police can’t use the breathalyzer on someone with profound intoxication.
Take away this tool for law enforcement?
Insist on a warrant?
Then lose time, lose evidence, and potentially unleash more drunk drivers on the public.
Yet, at least two states do require police get a warrant first.
Justice Sonia Sotomayor leaned heavily in favor of Mitchell’s basic argument. She seemed to walk Mitchell’s lawyer through his case for him. You’ll hear Justice Sotomayor and Assistant Public Defender Andrew Hinkel.
And again, you’ll hear the chief justice take a good-natured jab. Let’s listen.
SOTOMAYOR: Don’t you have an unconstitutional conditions argument?
HINKEL: Well, yes, I think there would be an argument of unconstitutional conditions.
SOTOMAYOR: And don’t you have an argument that the state can’t extract a condition that’s more invasive than reasonably necessary for its needs?
HINKEL: I think those—I think—
SOTOMAYOR: And a blood draw is different than searching somebody’s home.
SOTOMAYOR: Intrusive as searching someone’s home is, invading someone’s body is a different level of intrusion.
HINKEL: I agree with you, and that’s why I think it’s—
ROBERTS: Well, you’ve come up—you’ve come up with some good arguments there, but—[laughter] but I guess I would say in terms of the unconstitutional conditions thing, it’s been pretty well established, I think uniformly, that driving on the roads is considered a privilege and not a right, to which certain conditions can—can attach.
Justice Brett Kavanaugh brought it all back to on the ground reality when law enforcement deal with inebriation on the roads.
KAVANAUGH: Maybe I’ll just ask it generally. What are the practical problems, in your view, with getting a warrant in this class of cases?
JURSS: Sure. So if law enforcement has to be distracted at the scene, and figuring out whether you can get a warrant is already something that’s going to take some time. And so for law enforcement if they have to contemplate that, it’s potentially taking away time and resources from making sure that person gets medical care; if there’s a crash that’s happened, tending to the scene of the crash. And then once we’re at the hospital—
KAVANAUGH: And some of these situations I assume it’ll be a single officer?
JURSS: Some of these situations will be a single officer.
It’ll take five votes to affirm what the Wisconsin Supreme Court ruled: that when someone drinks to the point of unconsciousness, he or she gives up some things. The chance to withdraw consent to draw blood is one of them.
I think five justices will do that.
This second case (Fort Bend County v Davis) is highly technical and best kept short.
It asks whether a disgruntled employee can pursue a claim for religious discrimination in court before she first runs it through the Equal Employment Opportunity Commission process first.
The employee argues that’s not required under Supreme Court precedent.
The appeals courts have issued conflicting rulings on the question. So in the parlance of the law, this is a classic “circuit split” that only the Supreme Court can resolve.
The last case (Food Marketing Institute v Argus Leader Media) today is a dispute between the U.S. Department of Agriculture and a South Dakota newspaper, the Argus Leader.
The paper set out to investigate fraud in the federal food-stamp program. So in 2011, the paper sought information from the agriculture department about how much taxpayer money flows to each store that participates in the program.
The information request is called a FOIA. It’s an acronym that stands for the Freedom of Information Act. FOIA requests generally result in making government records available to those who ask, but there are some exemptions.
For example, if releasing records would cause substantial harm to the competitive position of the business, the information’s exempt.
The Ag Department cited exemptions in refusing the newspaper’s FOIA request.
Here’s Robert Loeb, lawyer for the newspaper.
LOEB: How the government spends its own money is critical information that the press and the public need to know. It’s the type of information that FOIA has been used for decades to reveal, you know, the Navy spending $670 on toilet seats, to the bail-out funds being abused and wasted, etc, etc…. Under their test, that could all now be claimed confidential by the parties ….That would be a dramatic change of the way that FOIA has been applied for more than 40 years.
But the trade group representing grocers and retailers intervened to ask the Supreme Court to answer these questions: What does “confidential” mean in the FOIA law? What does “substantial competitive harm” mean?
Trade group lawyer Evan Young argued that retailers in the food-stamp program need to keep those payments confidential.
And for him, “confidential” means what it means within a context.
So Young argued that ought to be enough for the justices to keep the information exempt from FOIA requests.
YOUNG: But the founder of LifeLock put his Social Security number up on billboards all across the country to prove that his technology was so secure. Now we wouldn’t think that that is confidential anymore. It’s just one manifestation of it. Everybody else’s might be… . And all that Congress asked the courts to do is answer the objective question: Does the person whose information the government now has, does that person keep this secret and not publicly disclose it?
And, if so, the fact, of course, that likely the reason they do that in many instances is to protect themselves from competitive harm, that’s not something that courts need to spend two days on a trial with expert witnesses and leaders from industry and all different industry segments coming in to try to persuade a poor district judge to figure out why in the world this information would cause a substantial competitive harm or not. Harm is not part of the word confidential.
So, the justices have to decide whether food-stamp payments should be a public record. They have another consideration: When Congress passed FOIA, did it mean to direct executive agencies like the Department of Agriculture to release food-stamp records?
The justices seemed to struggle to weigh competing interests:
On one side, they want to stick to plain meanings of words and keep them consistent within the same law. On the other, they appreciate the spirit of FOIA, to enable the press to provide factual information that helps citizens hold government accountable.
However the court rules, this case has major implications for the press and advocates of open government.
And that’s this week’s Legal Docket.