Because the Supreme Court has a self-imposed deadline for getting opinions done (which is sort of a good thing or otherwise you could have an extended back and forth between the majority and the dissent on major cases), the end of the term sees a lot of cases handed down at roughly the same time.  And that means that some important cases get lost in the shuffle behind the very important cases.

This week, we had nine opinions over two days (and we are likely to get twelve opinions over three days at the end of the week).  Yesterday I posted about the latest Second Amendment case and about a constitutional taxation case (which we almost never get).  In the absence of a big political issue, I avoid commenting on the criminal law cases and we had four criminal law cases that matter greatly to those of us who handle these cases), and the periodic dispute over water rights case between states (of which we had one this week) are usually highly fact specific with little impact other than which state is getting screwed.

That leaves two other cases of interest.  The first one is a Section 1983 case.  Section 1983 is one of those statutes enacted under Section 5 of the Fourteenth Amendment, and it gives private individuals the right to sue government employees who violate the plaintiff’s constitutional rights.  Most of the cases that make it to the Supreme Court arise in the context of police actions — allegedly unlawful searches, unlawful arrests, unlawful detentions, police brutality.  For arrests and detentions, the Supreme Court has long applied an objective test.  If there was probable cause to arrest, that defeats the claim regardless of the motivation of the officer.  The Supreme Court has recognized a limited exception when the alleged motivation is the exercise of First Amendment rights by the Plaintiff.  In that circumstance, the question becomes whether the plaintiff can show that, but for, the protected conduct of the Plaintiff, no arrest would have been made.

This week’s case concerned how a plaintiff goes about proving that.  In Gonzales vs. Trevino, the plaintiff is a member of the City Council of a small town.  Ms. Gonzales is something of a gadfly/muckraker who wants to root out what she believes is misconduct by senior officials in her community including the City Manager.  She obtained signatures on a petition seeking the removal of the City Manager and submitted them to a meeting of the City Council.  In introducing the petition into the record, Ms. Gonzales converted the petition into a public document.  While what happened next is disputed (was it an unintentional mistake or intention conduct), at the end of the meeting, she was leaving with the petition still in her physical possession.  Rather than simply having Ms. Gonzales turn that document over, the mayor had the police department investigate Ms. Gonzales for tampering with a public record, and charges were brought against Ms. Gonzales as a result of the investigation.  Since technically there was probable cause for the charges (as she did start to leave with the documents), Ms. Gonzales had to allege sufficient facts to fit within the retaliation exception.  She attempted to do so by looking at who had been charged with that offense in the county in the past, and, based on a lack of similar charges, she asked the court to infer that she was charged because she was annoying the other members of the city government.  The city officials whom she sued convinced the lower courts that her evidence was insufficient and argued that she needed to show people who had done the same thing and were not charged.

In an unsigned opinion with multiple concurrences, the Supreme Court decided that Ms. Gonzales had alleged enough to get to be allowed to pursue her claims further.  (She still has to prove her allegations, but she now gets a chance to prove them.)   The opinion issued on behalf of the court was simple and held that the plaintiff just needs to make some showing that the only reason for their arrest was to retaliate for their protected conduct.  While it might be better to show somebody had done the same thing (without the First Amendment component) but was not charged, that type of evidence is merely one way to show the improper motivation and other ways (like the one used by Ms. Gonzales) may be enough.  In a concurring opinion (which was probably the original draft opinion for the Supreme Court) Justice Alito explains why the evidence is enough, for now, in this case, but, also gives an opinion on the second issue presented by the case (whether a different standard should apply when the arrest is not being made after an investigation rather than at the moment of the alleged offense).    Not surprisingly, Justice Thomas dissents on the theory that the exception for retaliatory arrests should not exist.

The other case is an immigration case with marriage issues.  Under immigration law, if your spouse is a U.S. citizen, you are more likely to be given a visa and allowed to live in the U.S.  But there are still grounds on which the government can deny such a visa.  While there needs to be a valid reason for denying such an application, the government can merely cite the relevant provision of law without providing further explanation for why they think it applies.  And there is a limited opportunity to appeal to someone higher up to challenge the person in the consulate or embassy who makes the initial decision.  In Department of State vs. Munoz, Ms. Munoz alleged that this minimal process violated her liberty interest in her martial relations with her husband.    As a general matter, the decision to not grant a visa is not reviewable in U.S. Court as the applicant is not a U.S. citizen and, thus, has no more rights while living in a foreign country than is granted by statute.  As such, to get into court, there must be a violation of constitutional rights of a U.S. citizen.  The Supreme Court holds that, while the Constitution protects her right to marry her husband and a right to reside in the U.S. with him, the right is not substantial enough to trigger a liberty interest.  A background fact in the case is that the consular official may have suspected her husband of being a gang member.  The split in the case was the 6-3 conservative-liberal lineup.  While it does not occur 100% of the time, when the issue is interpreting the law to broaden the protections for immigrants and the statute is unclear, there is a good chance that this Court will narrowly interpret the statute.