Supreme Court Concludes October 2017 Term

The Supreme Court concluded its October 2017 Term with some last opinions relating to criminal law and civil rights.
 
In Minnesota Voters Alliance v. Mansky, decided June 14, the Court held that, even though a State may impose reasonable restrictions on speech inside polling places, a statute which made it a misdemeanor to wear a “political badge, political button, or other political insignia” inside a polling place violated the First Amendment’s Free Speech Clause.  The statute did not sufficiently define what apparel was “political” and, by being vague, failed to prevent arbitrary enforcement.
 
In a military case, Ortiz v. United States, decided June 22, the Court held that even though the Court of Appeals for the Armed Forces (CAAF) was established under Article I and is in the Executive Branch, the Supreme Court has appellate jurisdiction over its decisions because the Court’s appellate jurisdiction includes more than just Article III courts.   The Court, for example, also hears cases from state courts, courts of U.S. territories, and the District of Columbia. 
 
The Court further held that a military officer’s simultaneous service as a judge on both the Air Force appeals court and the Court of Military Commission Review (CMCR) did not violate either 10 U.S.C. Sec. 973(b), which prohibits an active-duty military officer from holding certain civil offices, or the constitution’s Appointments Clause.  The Court said the Appointments Clause does not impose rules about service in dual offices or prohibit service in dual offices, but only establishes procedures for how office holders are appointed.
 
In Lozman v. Riviera Beach, decided June 18, the Court held that a Sec. 1983 Plaintiff who alleged that Defendant-City had an official policy to arrest him for criticizing the City could maintain a First Amendment retaliatory arrest claim even though there was probable cause to arrest him for not obeying a lawful order to leave, when he failed to leave a podium at a public City meeting when asked to stop speaking.  The Court distinguished the case from a prior retaliatory prosecution case which held that a Plaintiff must show the absence of probable cause for the underlying criminal charge.  This was not a retaliatory prosecution case, but a suit against the City regarding an official policy, the Court said.
 
Finally, in Sause v. Bauer, decided June 28, the Court remanded a Sec. 1983 action to reconsider whether Defendant-Police Officers were entitled to qualified immunity.  Officers came to Mary Sause’s apartment in response to a noise complaint.  When they entered the apartment, Sause knelt and began to pray.  The officers ordered her to stop praying, and ultimately arrested her.
 
Sause sued the officers for violating her First Amendment free exercise of religion rights, and her Fourth Amendment rights to be free from unreasonable searches and seizures.  But Sause eventually pursued only the First Amendment claim.
 
The Supreme Court held that even though Sause was proceeding solely on her First Amendment claim, whether the officers were entitiled to qualified immunity required consideration of Fourth Amendment issues.
 
The First and Fourth Amendment issues in the case were inextricably linked, the Court said. 
 
 “We appreciate that [Sause] elected on appeal to raise only a First Amendment argument and not to pursue an independent Fourth Amendment claim, but under the circumstances, the First Amendment claim demanded consideration of the ground on which the officers were present in the apartment and the nature of any legitimate law enforcement interests that might have justified an order to stop praying at the specific time in question,” the Court said.  “Without considering these matters, neither the free exercise issue nor the officers’ entitlement to qualified immunity can be resolved.”