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A modest gain for electronic privacy

The cause of electronic privacy gained a bit in the Supreme Court on Monday as the Justices ruled that it is a search, subject to constitutional challenge, when police install a monitoring device on an individual’s body to track movements after being convicted of a crime.  The Court did not itself settle, at this point, when such monitoring does violate the Fourth Amendment, leaving that to lower courts to decide first.

The ruling in the case of Grady v. North Carolina, issued without formal briefs or a hearing, was one of a series of actions the Justices took in several rulings and orders.  They also granted review of death penalty procedures used in two Kansas murder cases and agreed to clarify when an employee benefit plan may sue a worker to recover funds that the plan claims were wrongly paid.  The newly granted cases will be decided at the Court’s next Term.  The Court also refused to clear the way for two new constitutional challenges to the new federal health insurance law, the Affordable Care Act.

The Grady case, decided summarily, involved a North Carolina monitoring program that requires individuals convicted of sex offenses to wear an ankle bracelet tracking their movements, for the rest of their lives.  In an unsigned opinion, the Court unanimously overturned a state court ruling that such a requirement did not even constitute a search because the requirement it imposed was a form of civil control, rather than criminal investigation.

Relying on earlier rulings that it amounts to a search when police install an electronic monitoring device on a suspect’s car and when police use a drug-sniffing dog to check out a home, the Court said it follows that police conduct a search when they attach a device to a person’s body, for the purpose of tracking that individual’s movements, and it makes no difference whether this was done as a civil or criminal technique.

The Court then told the state courts to reconsider the Grady case in view of that constitutional declaration.  That gives the individual involved, Torrey Dale Grady, a chance to argue that the search violates his right of privacy, and the state a chance to argue that the search is justified by the need to control the activities of a convicted repeat sex offender.

In a second summary ruling on Monday, Woods v. Donald, the Court ruled unanimously that it is not yet established constitutional law that a defense attorney in a criminal case abandons his client when the attorney leaves the courtroom at a point in a trial where the judge and other lawyers are focusing on evidence against other individuals on trial, not the temporarily absent attorney’s client.  It overturned a ruling by the U.S. Court of Appeals for the Sixth Circuit that even such a temporary absence amounts to ineffective professional conduct.

In three newly granted cases, the Court will be deciding whether a judge in a case that may lead to a death sentence has a constitutional duty to tell the jury that a more relaxed standard of proof applies when the jurors are deciding whether there are any “mitigating” factors which suggest that a death penalty should not be imposed.

That is an issue in two cases involving the joint murder trial of brothers in Wichita, who killed five people in a crime spree, and in a separate murder case involving an individual convicted of killing a woman who was believed to have shared evidence with police to convict that person.

That is one of two issues raised in the case of brothers Jonathan D. Carr and Reginald D. Carr (both petitions are titled Kansas v. Carr, but they have two separate docket numbers), and in the separate case of Kansas v. Gleason.  The jury instruction issue was decided in favor of the accused by the Kansas Supreme Court in the Gleason case, and then applied to the Carr cases.

In the two Carr cases, the separate question the Court will decide is whether it was unconstitutional for the state court to hold a death-sentencing proceeding for the two brothers at the same time, rather than separately.   Under the Court’s orders issued Monday, the Carr cases will be consolidated for one hour of argument on the combined review, and the Gleason case will be heard in a one-hour hearing of its own, presumably on the same day.

In the newly granted case of Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, the Court will be deciding an issue that has divided federal appeals courts six to two on an issue under the Employee Retirement Income Security Act of 1974.   The issue is whether the administrator of an employee benefit plan may sue a worker to recover funds that allegedly were wrongly paid, if the administrator does not identify the particular funds that are the target of a recovery lawsuit.

That is a question that the Court examined, but ultimately did not rule upon, in 2014 in the case of Thurber v. Aetna Life Insurance Co.   The U.S. Solicitor General had urged the Court not to hear that case, because the issue was not presented in a proper way, but did concede that there was a split in lower courts on the issue.

Here, in summary, are some of the other actions the Justices took on Monday:

** Without comment, the Court voted to leave intact a federal appeals court ruling that a lawsuit by two Arizonans, seeking to file new constitutional challenges to the Affordable Care Act, had been filed prematurely, and thus may not now go forward.  One issue in the case of Coons v. Lew was whether the ACA’s mandate that every individual buy health insurance or pay a penalty was unconstitutional because it requires an individual to disclose private and personal medical information in order to qualify for coverage.  The second issue is whether Congress acted unconstitutionally in creating a new government agency to find ways to keep in check the growth of federal spending on the Medicare program of subsidized health care for the elderly.

** For the third time in the past seventeen years, the Court once again refused to hear a claim that it is unconstitutional for  local school boards to refuse to allow private groups to hold religious worship services in public school buildings.  As a result of the latest denial of review in the case of Bronx Household of Faith v. New York City Board of Education, a lower court order temporarily permitting such services in school buildings will lapse, and the practice will have to end.

** The Court refused to reopen the constitutional question of the power of public school officials to bar students from wearing clothing with symbolic designs when the students do so as a form of silent, peaceful political expression.  The case involved a southern California principal’s one-day ban on wearing T-shirts bearing the American flag on a day when students of Mexican heritage were celebrating the Cinco de Mayo (May 5) holiday, out of fear that there could be violence.  The Court has not examined the political free speech rights of public school students since its famous 1969 decision in Tinker v. Des Moines School District, upholding students’ right to wear black arm bans to protest the Vietnam war.  The new case was Dariano v. Morgan Hill School District.  Morgan Hill is a bedroom community south of San Jose.

** The Court declined to hear the case of Nelson v. Wisconsin, testing whether a criminal conviction must also be overturned if the trial judge totally barred the accused person from testifying, when that individual wanted to take the stand.   The Wisconsin Supreme Court ruled that such an exclusion order violated the constitutional right of the accused, but found that the error was harmless.





Recommended Citation: Lyle Denniston, A modest gain for electronic privacy, SCOTUSblog (Mar. 30, 2015, 3:47 PM),