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Opinion

Written by ap-government-fall-2011-313

The case of Florence v. Board of Freeholders of Burlington County, New Jersey centers around the question, “Is a person’s Fourth Amendment right to protection against unreasonable search and seizure violated when a jail has a policy of strip-searching all prisoners even when a prisoner does not pose a threat to others in the jail?”

In March 2005, Albert Florence was pulled over by a New Jersey State Trooper because of an outstanding warrant for Mr. Florence’s arrest that had been issued for allegedly failing to pay a fine. Although Mr. Florence showed the officer documents stating that he had paid the fine, he was taken to a Burlington County jail. At the jail, he was subjected to a routine strip-search, visual body-cavity search, and shower in front of a correctional officer, all of which are required by incoming prisoners to be subject to. He was transferred to a correctional facility six days later and had to undergo the same search procedures. The correctional facility had a blanket policy of subjecting all incoming male residents to these searches.

Mr. Florence brought a suit against the jail, claiming that the blanket policy violates his and others’ Fourth Amendment rights to be free from “unreasonable search and seizure”. The Board of Freeholders contends that the blanket policy is necessary because it protects inmates from dangerous weapons and diseases. In addition, the Board says that the detection of weapons is difficult due to cramped conditions in the prison and that intake searches are the best precautionary measure to take. The District Court has seemed to rule in favor of Mr. Florence while the Third Circuit Court of Appeals reversed the District Court decision and ruled in favor of the Board of Freeholders of Burlington County.

One major Supreme Court case that has set a precedent in this type of case is Bell v. Wolfish, 441 U.S. 520 (1979). In this case the Court ruled in favor a prison policy of strip-searching all inmates after they have received supervised visits and ruled that “reasonable individualized suspicion wasn’t needed when making a prison strip search. Another case that has set a precedent is Hudson v. Palmer (1984), which determined that the Fourth Amendment does not apply to protection from searches of prison cells.

We the Court have determined that the blanket policy of subjecting all incoming inmates to these searches is constitutional and does not violate Mr. Florence’s Fourth Amendment rights. The searches are a precautionary measure used by Burlington Co. correctional facilities to prevent violence and danger in the prison and to also protect the inmates. In addition, the use of individualized analysis of each inmate can lead to issues regarding discrimination or racial profiling and things of that nature. A complex analysis would not guarantee protection of jail inmates the same way that the blanket policy does. Our decision is supported by the decision made in Bell v. Wolfish to allow inmates to be strip-searched after visits with guests, determining that these searches were constitutional. This decision has been upheld by circuit court decisions in recent years, notably in Powell v. Barrett, and also through the Supreme Court decision in Hudson v. Palmer in 1984

Personally, I believe that the actual Supreme Court will rule in favor of the Board of Freeholders of Burlington County in a 6-3 decision because of many of the reasons I’ve stated above and in large part because they don’t want to overturn the decision made in Bell v. Wolfish. The precedent set in that case is a long-lasting and legitimate one in the eyes of the Court.  There seems to be a division between more liberal and more conservative justices in these types of cases, with the liberal siding with the inmates’ rights while conservatives tend to rule in favor of the prisons. At the end of the day though, a solid precedent will lead the majority to side with the Board of Freeholders in this case.

Amicus Brief

Written by ap-government-fall-2011-313

Dear Supreme Court,

I am the leader of an organization that promotes safety in prisons across the country and I am writing to you because I believe that a decision in Florence v. Board of Freeholders of Burlington County, New Jersey ruling that these searches are constitutional will keep inmates safe. The blanket policy that seems to be the central issue in the case is a policy that is in the best interests of all who are at the prison because it prevents weapons or other dangerous materials from entering the prison. It also prevents violence between inmates, thus protecting correctional officers who are assigned to break up such skirmishes. The 1979 case of Bell v. Wolfish has set a clear precedent stating that strip-searches of inmates after visits from guests are needed to protect the inmates of the prison. Sometimes a bit of discomfort is the only way to protect people’s lives. If Mr. Florence has an issue with that, then maybe he should think twice before committing an action that caused him to receive a fine and land in a prison. I trust that you will use correct judgment and review past precedents when you make your ruling on this case.

The Cost of Safety

Written by ap-government-fall-2011-313

Over the past decade, Americans have seen a drastic tightening of security, especially at airports. This increased security is for good reason though, as it is the result of the 9/11 attacks on the United States and subsequent terror plots. Airports now have limitations on what passengers are allowed to bring on plane and may be subject to physical searches of the body as well as x-ray exams of what a person is bringing onto a plane. I believe that this increase in security is extremely important though. People need to understand that if sacrificing a bit of comfort and time saves innocent air passengers and other citizens from dying as the result of a terrorist attack, the increased security is valid and constitutional. Current events do seem to effect the country’s security, one example being Executive Order 9066 which authorized the interment of Japanese Americans during World War II. If the United State enters a long period of time where it isn’t attacked or threatened greatly, I wouldn’t be surprised to see a cut back of some security measures. Now I don’t necessarily agree with that but it’s a fact that current events dictate what security measures are taken in our country.

Opinion

Written by ap-government-fall-2011-313

In the case of Hosanna-Tabor Church v. Equal Employment Opportunity Commission, the central issue seems to be whether or not the “ministerial exception” applies to teacher Cheryl Perich. From 1999 to 2005, Perich taught elementary school at Hosanna-Tabor Evangelical Lutheran Church and School and taught secular subjects to her class though the school offers a “Christ-centered education” with religious classes and times for prayer. When Perich took a medical leave of absence in 2004 she was promised that her job would be waiting when she returned, but that was not the case when she returned. Hosanna-Tabor had not left an opening for her and she consequently filed a complaint with the EEOC alleging unlawful discrimination and a violation of rights under the Americans with Disabilities Act.

Hosanna-Tabor contends that under the First Amendment and the ministerial exception, federal employment discrimination laws do not apply to religious leaders and that federal interference in the hiring and firing of religious leaders is a violation of the church’s First Amendment rights. Perich’s defense states that the ministerial exception to the ADA doesn’t apply to her because her teachings were primarily non-religious. She was however a “commissioned minister” and used religion a few times in the classroom but she mainly used secular teaching materials.

We the court believe that in fact the ministerial exception does not apply to Perich’s teaching role at Hosanna-Tabor mainly because her teaching duties were primarily non-religious. Perich did not hold a high religious position such as a minister or bishop and her role does not affect the religion. Hosanna-Tabor thus wrongfully terminated Perich because her narcolepsy did not interfere with her ability to do her job and the fact the Perich is protected under the ADA.

One previous Supreme Court ruling that has set somewhat of a precedent is Employment Division v. Smith, 494 U.S. 872 (1990). Here, some Native Americans in Oregon were fired from their jobs because they smoked peyote, an illegal drug in Oregon, during religious ceremonies. The Native Americans claimed that punishment of using this drug in a religious ceremony is a violation of their First Amendment rights to exercise free religion. The Court ruled that it is constitutional for Oregon to regulate drug use and that it doesn’t interfere with the “free exercise” clause. The First Amendment doesn’t allow someone to disobey the law because of a religious objection. If we apply this ruling to the present case we determine that Hosanna-Tabor cannot disobey the Americans with Disabilities Act because of a religious objection that does not fall under the ministerial exception.

Another court case that has set a precedent is Sutton v. United Airlines Inc., 119 S.Ct. 2139 (1999) which determined that if a disability can be corrected or mitigated, employers can conclude that an impairment does not amount to a ‘substantial limitation.’ Narcolepsy is a condition that has treatments to help the individual but not cure them. Therefore, Perich’s condition can be described as a disability and she is protected under the ADA.

Personally, I predict that the actual Supreme Court decision will be very close, with a 5-4 ruling in favor of Perich and that the termination of her from her teaching position was unconstitutional. The deciding judge will be Judges Clarence Thomas who, though he is conservative and most conservatives will support the church, is chairman of the EEOC. That will ultimately play an underlying role in the decision, which will have a far-reaching impact on how religious institutions view their employees. They’ll have to take in account for what the primary duties of the employees are and whether or not they’re religious.

Amicus Brief

Written by ap-government-fall-2011-313

Dear Members of Supreme Court,

I am a lawyer representing a York Catholic School District in York, PA and I am writing to you in order to help you understand that a decision in favor of Cheryl Perich in Hosanna-Tabor Church v. EEOC will have negative effects on religious establishments all across the country. There is a distinct separation between church and state for a reason and you will violate this separation if you allow Perich to bring this claim against her previous employer. Religious institutions and employees should not be combined with governmental regulations regarding the workplace, an opinion that our own founding fathers believed in. She is covered under the ministerial exception because she is an employee of a church and she does lead her classes in prayer and devotional time. Therefore she is not protected by the ADA. Also, a decision in favor of Perich will open the door for so much gray area and all across the country you will hear of church employees bringing claims against their employer and defending themselves by saying that their duties were primarily non-religious. It is too difficult to determine what duties are primarily religious or non-religious on a case-by-case basis. A definitive precedent for ministerial exception cases needs to be set and this is the time to do that. I have faith that you will make the correct ruling.

Opinion

Written by ap-government-fall-2011-313

The two issues at hand are the following: Does this case involve a political question that may not be heard by the courts? And, did the legislative branch interfere with the powers of the executive branch when it passed a law forcing the State Department to name Israel as the birthplace for American citizens born in Jerusalem?

In 2002, the Foreign Relations Authorization Act was passed through Congress and Section 214(d) states that the State Department must recognize “Israel” as the birthplace of U.S. citizens born in Jerusalem, though the State Department has not wanted to name Jerusalem as the capital because it is the cause of much conflict. President Bush Signing Statement declared that Section 214(d) was unconstitutional because it changed the executive branch’s opinion on Jerusalem, and foreign policy decision are made only by the executive branch.

The Zivotofskys, the petitioner, wish to have the State Department recognize their son’s birthplace as Jerusalem, Israel. They believe that we the Court should hear the case because it deals with the separation of powers. They also argue that the President acted unconstitutionally, not Congress, by attaching a signing statement. Clinton, on behalf of the State Department, has argued the case involves foreign policy issues and can’t be heard by the courts and that President Bush was right in rejecting Section 214 (d) because it was unconstitutional.

We the Court have decided to dismiss this case due to the fact that it involves foreign policy matters, a political question that may not be heard by the courts. The issue of what to declare Jerusalem as part of forces the government to take a stand on a foreign policy issue, which is a dealing of the executive branch. Therefore, we the courts may not hear this case. Addressing the second issue, we the Court rule in favor of Clinton that Congress interfered with the powers of the executive branch because it attempted to change the State Department’s stance on Jerusalem.

One past court decision that we examined to help us in our decision was Goldwater v. Carter where the case was dismissed because the main issue involved ending treaties. Since this involves foreign policy, five of the justices in the 8-1 decision argued that the case involved a political question and couldn’t be heard by the Court. M.B.Z. v. Clinton involves a political question and shouldn’t be heard by the courts. Also, in the Baker v. Carr case of 1962, the court opinion stated the following: “Prominent on the surface of any case held to involve a political question is found: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;
(2) or a lack of judicially discoverable and manageable standards for resolving it . . .” The courts do not have manageable standards for resolving this case as it involves foreign policy and should be dealt with in the executive branch of government. Marbury v. Madison did show that the powers of the executive branch “can never be examinable by the Courts.”

            I personally feel that the actual Supreme Court will agree with my opinion, ruling that this case involves a political question and cannot be heard in the courts. It will be a 6-3 decision with Roberts, Thomas, and Scalia voting in favor of M.B.Z. because they are more conservative justices and conservatives tend to vote in favor of less executive branch power.

Amicus Brief

Written by ap-government-fall-2011-313

Dear Supreme Court,

I am writing to you as a supporter of the President’s strong executive power. I believe that in order for the executive branch to hold it’s power as the branch that deals with foreign policy, you must decide to either dismiss the case or rule that Congress acted unconstitutionally when it drafted section 241(d) as part of the FRAA. Madison v. Marbury showed that the powers of the executive branch can’t by dealt with in the courts and that statement is also supported by the Goldwater v. Carter case. There needs to be a clear separation of powers and the executive branch needs to hold onto its ability to make decisions on the global stage.

Historical Context

Written by ap-government-fall-2011-313

The Framers of the Constitution wanted to prevent a monarchy from becoming the political system of the United States, so they developed a balanced approach to creating a government. The three branches of government, executive, judicial, and legislative, where created first of all to divide the work of the government. Not one single person would have to deal with court rulings and foreign policy. Also involved with the three branches was a system of checks and balances that held each branch accountable to their actions. Not one area of government can gain more control than the others without questions being raised and measures being taken to prevent that. The Framers were tired of their voice not being heard in the British monarchy and they didn’t buy into the idea of “royal blood”. Their new country needed a foundation based on equality and freedom, thus the three branches of government.

Opinion

Written by ap-government-fall-2011-313

  In the case of Rehberg v. Paulk, the central issue at hand is whether or not a government official who knowingly provides false testimony to a grand jury that results in the arrest of an innocent citizen is entitled to absolute immunity from a civil lawsuit.

In 2003 and 2004, Charles Rehberg, the petitioner in this case, sent anonymous faxes to Phoebe Putney Memorial Hospital in Albany, Georgia that criticized the hospital’s business practices and ways of dealing with money. District Attorney Ken Hodges, the respondent in this case, agreed to investigate the faxes with Chief Investigator James Paulk, another respondent, as a favor for the hospital. They felt as though Rehberg had sent the faxes so they created fake subpoenas for Rehberg’s phone records and electronic data. The subpoenas lied about the fact that a grand jury was requesting the documents. Rehberg was the charged with assault, burglary, and harassment as Faulk, the only witness to the grand jury, testified that Rehberg broke into a doctor’s house and assaulted him. There was no physical evidence to support this. The jury eventually found there to be a lack of evidence and the charges were dismissed. Rehberg was then indicted for the same charges two more times and both were eventually dismissed.

Rehberg consequently filed a lawsuit saying that Hodges and Paulk violated his constitutional rights under Title 42 of the United States Code, Section 1983; Civil Actions for Deprivation of Civil Rights, which states that “Every person who . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . .”

The violation came in the creation of fake subpoenas, knowingly lying to a grand jury, and improper prosecution. Hodges and Paulk contend that the lawsuit should be dismissed because they are protected under absolute immunity, which states that a prosecutor can’t be sued for things the say in front of a jury while acting as a government representative in court.  The district court has ruled in favor of Rehberg, believing that Paulk acted as a complaining witness in the trial, not a prosecutor, and was not protected under absolute immunity, only qualified immunity. The district court reversed that decision and the decision now lies in our hands.

One previous Supreme Court case which will shed some light on the subject is Malley v. Briggs (1986) where court officials determined that government officials who act as complaining witnesses and don’t have enough probable cause for arrest established in their warrant affidavits are only protected under qualified immunity. In the 1976 case Imbler v. Pachtman, although the Court ruled in favor of attorneys or prosecutors having absolute immunity from civil suits resulting from governmental duties, they remarked that absolute immunity may “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.”

Such is the situation in this case. We the Court believe that Paulk was acting as a complaining witness and is therefore not protected by absolute immunity. Paulk was not working this case as a governmental duty, but rather as a favor for the hospital that inquired about where the faxes were coming from. The respondent lied and used malicious techniques in order to gain information about Mr. Rehberg and did not have enough probable cause for arrest, though Rehberg was arrested anyways. The absolute immunity clause does not protect attorneys who bring up complaints against others, use distasteful and reckless techniques to arrest them for a crime they obviously knew the person had not committed, and then act as the only witness to a grand jury. The respondent is not protected under absolute immunity.

I, as a student, believe that the real Supreme Court will favor the petitioner and rule that Paulk is not protected under absolute immunity in a 6-3 decision. The court will find that Paulk was acting as a complaining witness and the fact the Paulk lied and made up documents that led to an arrest will not cause the Court to look favorably towards him. Also in the case is a Fourth Amendment issue. A decision in favor of Rehberg will set a precedent for greater protection against search and arrest when the arrest only comes after government officials have produced false document. I believe that three strong conservative justices, Thomas, Roberts, and Scalia, will vote in favor of Paulk because historically, conservatives have leaned towards supporting absolute immunity for all government officials.

Amicus Brief

Written by ap-government-fall-2011-313

Dear Supreme Court,

I am the leader of an organization that fights to support police officers and protect their rights. I believe, as does my organization, that you the Court need to rule that Paulk is protected under absolute immunity in order to protect government officials, especially police officers, from unnecessary and ridiculous lawsuits. A ruling in favor of Paulk will prevent a gray area from emerging when it comes to absolute and qualified immunity. Before you know it, there will be countless convicted criminals asking to have their say in court because they believe they’re owed money by a police officer who lied on the stand or gave incorrect information in their mind. Please remember the precedent that was set in Briscoe v. LaHue (1983) where it was determined that all trial witnesses are granted absolute immunity. The Court was also fearful that if their decision went the opposite way, a flood of lawsuits made by defendants who lost trials against police officers would soon appear. If you don’t rule in favor of Paulk, a door will surely be opened leading to future lawsuits against innocent police officers.

Everyone (Doesn’t) Get Her Day In Court

Written by ap-government-fall-2011-313

When the Court stated in its opinion of the Briscoe v. LaHue case that a decision giving police witnesses only qualified immunity would bring forth a flood of lawsuits made by bitter criminal defendants against police officers, I believe that the Court was only looking out for the best interests of the police officers. The officers do not want to relive a trial in which they’ve already given their solid testimony by having a lawsuit filed against them by the same defendant. It isn’t fair to the police officers to have to risk losing money because an angry criminal feels like the officer’s testimony drastically impacted the case that he or she lost. However, if I am wrong and the Court just did not want the court system to be bogged down by these lawsuits, I believe that the Court has the right to decide that. Police officers are held to a higher standard than regular citizens and therefore deserve a protection of their rights.

Hosanna Tabor v. EEOC’s Effect on Religious Schools

Written by ap-government-fall-2011-313

  As a director of a religiously affiliated school, I believe that if the Court decides to allow employees like Perich to file lawsuits after being terminated, a serious threat is posed to the existence of religiously affiliated schools. The curriculum would need to be watered down to the point that almost all teachers would have primarily secular teaching duties, thus making the once religious school basically the same as a regular public school. Some schools are religiously affiliated for a reason and it isn’t right to force the schools to rid much of the curriculum of religious material in order to protect themselves from a lawsuit. A decision saying that Perich falls under the ministerial exception will provide some clear cut definition to the rule and allow religiously affiliated schools to operate efficiently without the fear of being sued. This would be the best-case scenario for a school like the one I am director at.