From the potpourri of cases decided by a circuit that reaches from the Canadian border to the Ozarks, here is a sample of recent decisions handed down by the 8th U. S. Circuit Court of Appeals.
To begin with a reprise, last year’s sampling of 8th Circuit cases [NLJ, 5-3-04, Page S1] reported on the panel decision in ACLU Nebraska Foundation v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004). That case, over a dissent, had held that Plattsmouth, Nebraska’s display of a “Ten Commandments” monument in a city park violated the establishment clause.
The panel decision was vacated when the court voted to rehear the case en banc, and then the Supreme Court issued its own “monumental” decisions in Van Orden v. Perry, 125 S. Ct. 2854 (2005), and McCreary County v. ACLU, 125 S. Ct. 2722 (2005), deciding, respectively, that the Ten Commandments monument on the grounds of the Texas State Capitol did not violate the establishment clause, but that the Ten Commandments displays on the walls of two Kentucky courthouses did. Guided by those decisions, the en banc 8th Circuit found the Plattsmouth monument – which was virtually identical in form to the Texas one – did not violate the clause. 419 F.3d 772 (8th Cir. 2005).
The majority stated that the monument’s relatively remote location (in the corner of a 45 acre park, 10 blocks from the city hall) excused any lack of history-emphasizing secular context; that its “passive” display of the text of the Ten Commandments (presented “to acknowledge the role of religion in our Nation’s heritage”) had stood unchallenged for 35 years; and that it was similar to Ten Commandments representations that have long appeared on a variety of government buildings, from the Library of Congress to the Supreme Court building.
The dissent, however, found that the same facts cut the other way: That the Plattsmouth monument was the lone monument in the park – unlike the 38 other monuments and markers on the Texas Capitol grounds, or the 17 other lawgivers depicted with Moses on the frieze in the Supreme Court’s courtroom – meant there was no historical context to ameliorate the religious message of the text. The passage of time meant only that such displays were relics from a period when the word “religion” in the establishment clause was narrowly thought to refer only to sects of Christianity rather than the broader reading required in today’s pluralistic nation.
A trio of school cases
Three significant cases involved schools and the rights of those attending them, teaching at them or wanting to live near them.
In Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004), students in a seventh-grade class were ordered to leave their room after removing everything from their pockets and placing all of their belongings, including purses and backpacks, on their desks. While the students waited in the hallway, school officials searched through the items; any contraband found was reported to the police for prosecution. Over a dissent that would have found the search policy reasonable if it were merely used for school safety and not as a policing mechanism, the 8th Circuit held such random, suspicionless searches of the general student population violated the students’ Fourth Amendment rights, at least absent consent or waiver by those searched, or extenuating circumstances posing a grave security threat.
In Wigg v. Sioux Falls School District, 382 F.3d 807 (8th Cir. 2004), an elementary teacher was barred by the school district from attending an after-school meeting of a Christian-based club being held at the school at which she taught. When the teacher complained that this bar violated her free speech and free exercise rights because she was attending as a private citizen after school hours, the school district said it nonetheless had to enforce the bar because of establishment clause concerns: Although it was not worried about merely permitting the club to use the facilities after school hours, it was concerned that allowing a teacher from the same school to attend would appear to be an endorsement of a religious activity.
The 8th Circuit, however, ruled that no reasonable observer could regard the teacher’s private participation as state endorsement of religion when it did not occur during a school-sponsored event, the teacher did not affiliate her views with the school district (and a proposed disclaimer said as much), students participated only with specific parental consent, and nonparticipating students were either in other supervised activities or out of the building by then. Accordingly, since the school district had no legitimately compelling establishment clause concerns, it could not bar the teacher’s after-hours participation.
In Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), petition for cert. filed (Sept. 28, 2005)(No. 05-428), the 8th Circuit reviewed an Iowa law prohibiting persons convicted of certain sexual offenses involving minors from residing within 2,000 feet of a school or child care facility. Concluding that the Constitution did not prevent the state from regulating the residency of convicted sex offenders in this manner to protect health and safety, the panel unanimously upheld the statute against a facial challenge.
The panel divided over whether the statute was an unconstitutional ex post facto punishment for those individuals who had committed covered offenses prior to the statute’s effective date of July 1, 2002. The majority determined that the plaintiffs had not shown by the “clearest proof” that the punitive effects of the statute overrode the legislature’s nonpunitive intent to regulate for reasons of health and safety, while the dissent argued that the statute amounted to an impermissible punishment because, among other things, it was in effect a virtual banishment from a number of communities, since there were no living areas in those communities which were outside the restriction of the statute. By a 6-5 vote, the court denied en banc rehearing.
Business and employment
Of the several business and employment cases before the court, a look at four will exemplify the variety of topics addressed:
In Midwestern Machinery Co. v. Northwest Airlines, 392 F.3d 265 (8th Cir. 2004), the plaintiffs challenged the 1986 merger of Northwest and Republic Airlines under § 7 of the Clayton Act, which exists, primarily, to nip in the bud mergers that could produce anti-competitive results. They did not sue, however, until 1997, and Northwest contended the Act’s four-year statute of limitations, as well as laches, barred the suit. A divided 8th Circuit panel agreed. Among other things, it held that the plaintiffs’ “continuing violation” theory was untenable in a Clayton Act context, because the continuing acts pointed to by the plaintiffs were no more than “the unabated inertial consequences” of the initial alleged violation.
It also held that their asset “holding and use” theory was unavailable absent some use of the assets that was different after the merger than before. To the panel majority, it made no sense – and indeed would render the Act’s limitations statute meaningless – to leave merged firms perpetually open to private plaintiff liability based solely on the potential effects the merger may have on competition. Instead, after the four-year limitations period, private plaintiffs must challenge any actual or attempted monopolization under the Sherman Act, with its higher threshold of liability. The dissent disagreed less on the law than on the facts, arguing that the plaintiffs had at least shown a sufficiently changed use of certain assets to withstand summary judgment on the limitations issue.
Going from planeloads to platefuls, in American Italian Pasta Company v. New World Pasta Company, 371 F.3d 387 (8th Cir. 2004), New World contended that American’s use of the phrase “America’s Favorite Pasta” was false or misleading advertising under the Lanham Act: Although American had only regional brands and was not the national best seller, a consumer survey showed that 50% of those surveyed thought the phrase meant it was a national brand and 33% understood it to mean it was the No. 1 brand. The 8th Circuit, however, noted that dictionary definitions showed “favorite” meant “markedly popular;” “popular,” in turn, meant “well-liked” or “admired;” and “America’s” was a vague and general reference in this context. Further noting that an item could be well liked -- or even liked best -- without being the No. 1 seller due to price or other factors, the court held the phrase to be mere puffery, and declined to let a survey result override a dictionary-based analysis here.
In Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir. 2005), the 8th Circuit upheld a compensatory award of $4.025 million to the plaintiff and the estate of his wife on a design defect claim against the successor corporation to the original maker of Pall Mall cigarettes. Although it reduced a $15 million punitive award to $5 million on due process grounds, of note was the court’s reaction to the defendant’s argument that no punitive damages award was appropriate. The defendant argued that, because the wrongdoer – its predecessor corporation, American Tobacco Company – no longer existed as an entity, and because no individuals who were in leadership positions with the predecessor were in similar positions with the successor, there was no wrongdoer to punish. The court, however, noted that the purpose of a “punitive” award is not only to punish but to deter. Since the successor and other similar companies were still in the cigarette business, there was a deterrent value, and that was enough.
In re: ADC Telecommunications, Inc., Securities Litigation, 409 F.3d 974 (8th Cir. 2005), presented the question of whether the new two-years-from-discovery statute of limitations in the Sarbanes-Oxley Act of 2002 applies retroactively to revive claims already barred (under the previous limitation of one-year-from-discovery) when the new act became effective on July 30, 2002. Joining the 2nd and 7th Circuits, the 8th Circuit held such claims were not revived.
Two noteworthy cases involved abortion-related topics: In Frye v. Kansas City, Mo., Police Department, 375 F.3d 785 (8th Cir. 2004), cert. denied, 125 S.Ct. 1639 (2005), abortion protestors assembled on a sidewalk at a busy intersection and displayed signs, some of which were poster-sized photos of aborted fetuses. Determining that a traffic hindrance was occurring when several motorists complained that viewing the signs impaired their ability to control their vehicles safely, police gave the demonstrators the option of remaining near the curb but putting down the large signs, or keeping those signs but moving farther away from the street. When the protestors refused both options, they were arrested for impeding traffic.
Several of the protestors then brought suit, alleging their civil rights had been violated. The officers defended, in part, by asserting qualified immunity, saying their actions amounted only to reasonable time, place, and manner restrictions to protect public safety. The 8th Circuit panel majority agreed with the officers. A dissent would have held the restrictions amounted to a prohibited “heckler’s veto” because it was only the viewers’ reaction to the content of the signs that created the traffic problem.
The constitutionality of the federal Partial-Birth Abortion Ban Act of 2003 came before the 8th Circuit in Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), petition for cert. filed (Sept. 23, 2005)(No. 05-380). The court ruled the act unconstitutional on its face because it failed to provide an exception for the health of the mother. The court said it is a per se constitutional requirement that there be a health exception whenever “substantial medical authority” supports the medical necessity of using a particular procedure in some instances. Because it was part of a constitutional requirement, it was up to the courts, not Congress, to determine the state of such medical authority, and, in the court’s view, the state of that authority had not materially changed since last addressed by the Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000), which found that substantial medical authority supported the medical necessity of a health exception for the procedures at issue. Accordingly, it was irrelevant that Congress in passing the act had stated its own finding that the procedures it was outlawing were never medically necessary.
Inasmuch as criminal cases, together with prisoner-initiated matters, regularly make up roughly half of the 8th Circuit’s caseload, it is appropriate to end this sampler with a look at two of them:
In United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005), the government had introduced the fact that the defendant had not acted surprised, angered or emotional when he was arrested after officers found controlled substances in the U-Haul truck he was driving cross-country, arguing that was evidence that he knew what was in the truck and had not been duped by a friend. The defendant argued that use of evidence of his having remained silent between his arrest and the administration of a Miranda warning had violated his Fifth Amendment right against self-incrimination.
The 8th Circuit noted that it is well-established that post-arrest, post-Miranda silence cannot be used at trial (even for impeachment), and that it is also clear that post-arrest, pre-Miranda silence may be used for impeachment when a defendant takes the stand. It found, however, a conflict of authority on whether post-arrest, pre-Miranda silence could be used by the government in its case-in-chief as evidence of guilt. Deciding this as a case of first impression within the circuit, the court held there was no Fifth Amendment violation in introducing the evidence, given that the arrest by itself did not amount to governmental action that implicitly induced the defendant to remain silent.
Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004), while not technically a criminal law case, did involve execution procedures, specifically whether the Missouri Department of Corrections’ policy banning cameras in the execution chamber violated a First Amendment right of public access. The 8th Circuit upheld the ban, noting that while there was a First Amendment right of access to criminal trials themselves, no court had yet ruled that cameras were required to satisfy that right. Accordingly, the court held that whether or not there was a right of the public to attend executions, the First Amendment does not protect the use of cameras in the execution chamber.
This article is reprinted with permission from the October 24, 2005 issue of the National Law Journal. Copyright 2005 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.