Supreme Court Update: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (10-553), Perry v. New Hampshire (10-8974), and Pacific Operators Offshore LLP v. Valladolid (10-507)

January 13, 2012 Supreme Court Update

Greetings, Court fans!

We're back with the three decisions released on Wednesday: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (10-553), holding that the "ministerial exception" bars a suit by a minister against her church claiming termination in violation of employment discrimination laws; Perry v. New Hampshire (10-8974), holding that, absent improper police conduct, the Due Process Clause does not require courts to prescreen eyewitness evidence for reliability, and Pacific Operators Offshore, LLP v. Valladolid (10-507), addressing whether the widow of a roustabout who died on shore could recover under the Longshore and Harbor Worker's Compensation Act and the Outer Continental Shelf Lands Act.

Chief Justice Roberts penned the Court's unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (10-553), holding that Cheryl Perich, a "called teacher" and commissioned minister could not assert an employment discrimination against her church employer challenging her termination. Hosanna-Tabor is a member congregation of the Lutheran Church-Missouri Synod. It operated a small religious school, at which Perich taught for a number of years. The Synod classifies its teachers as either "called" or "lay." A called teacher must complete certain theological educational requirements, be endorsed by the local Synod district, and pass an oral examination by a faculty committee. The teacher is then eligible to be "called" and receive the formal title "Minister of Religion, Commissioned." Called teachers are regarded as having been called to their vocation by God and their call can be rescinded only by a supermajority of the congregation. In addition to teaching secular subjects, teachers at the Hosanna-Tabor school teach religion four days a week, lead children in prayer three times per day and attend a weekly school-wide chapel service. While called and lay teachers generally perform the same duties, lay teachers are hired only when called teachers are unavailable.

Perich began her work at Hosanna-Tabor as a lay teacher, but later completed the requirements to be called and was called and designated as a commissioned minister. In June 2004, Perich became ill with narcolepsy and she began the 2004-2005 school year on disability leave, prompting the school to hire a lay teacher for the year. In January 2005, Perich informed the school that she could return to work in late February. The school principal told Perich that the school had already contracted a lay teacher for the year and expressed the view that Perich wasn't ready to return. Later that month, the congregation held a meeting at which school administrators stated that Perich was unlikely to be physically capable of returning to work that school year or the next. The congregation voted to give Perich a "peaceful release" from her calling and offered to pay a portion of her health insurance premiums in exchange for her resignation. Perich refused to resign, presented a doctor's note clearing her to return to work on February 22 and then showed up on February 22, refusing to leave the school until she got written documentation that she had reported to work. The principal called to tell her that she would likely be fired and Perich replied that she intended to assert her legal rights. Thereafter, the congregation voted to rescind Perich's call and Hosanna-Tabor terminated her on the basis of insubordination and disruptive behavior and her threat to take legal action – which was anathema to the Lutheran belief in internal dispute resolution. Perich filed a complaint with the EEOC, which brought suit against Hosanna-Tabor, alleging that the church terminated Perich in retaliation for her threat to file an ADA lawsuit against the church. The District Court granted summary judgment to Hosanna-Tabor, finding that the EEOC's suit was barred by the ministerial exception rooted in the First Amendment's religion clauses. The Sixth Circuit reversed, recognizing the existence of a ministerial exception, but finding that Perich didn't qualify for it, relying largely on the fact that lay teachers performed the same duties as Perich.

The Court reversed. Chief Justice Roberts began by exploring the historical backdrop for the First Amendment's Free Exercise and Establishment Clauses and found in that history ample evidence that the founding fathers sought to protect against state interference with a church's selection of its ministers. While the Court had not previously considered whether the religion clauses created a ministerial exception to the applicability of employment discrimination laws, the Court's precedents had repeatedly recognized the need for courts to steer clear of regulating internal church affairs and the lower courts had uniformly recognized the so-called "ministerial" exception. The Court agreed. The only question left was whether Perich qualified for the exception. All nine Justices agreed that she did. She was given the title of minster and held out by Hosanna-Tabor as such. She was required to obtain significant religious training to obtain that role and her job duties involved conveying the Church's message and religious teachings to the next generation. While the Court declined to articulate a rigid test for determining when a person qualifies as a minister, it had no doubt that Perich qualified. Because Hosanna-Tabor had the First Amendment right to determine who would minister to its faithful, the EEOC's suit could not go forward.

Justice Thomas joined the Court's opinion, but wrote separately to note that he would leave it to the Church to determine who qualifies as one of its ministers – since that question, in and of itself, is a religious one. Justice Alito, joined by Justice Kagan, also concurred, to emphasize that religions may differ in the words they use to call their key employees and that the "ministerial" exception certainly wasn't limited to individuals with the title "minister," nor should it necessarily include every person a church opts to call a minister. Rather, a functional approach – focusing on the individual's roles and duties – should be used to determine which employees fall within the exception.

In Perry v. New Hampshire (10-8974), the Court acknowledged the fallibility of eyewitness evidence, but refused to extend due process to require courts to conduct pretrial hearings to screen eyewitness evidence for reliability in the absence of any improper state conduct. In Perry, the police responded to a 3 a.m. call that an African-American male was trying to break into cars in an apartment building parking lot. The first officer on the scene came upon Perry standing between two cars and holding two car-stereo amplifiers in his hands. Perry said that he had "found them on the ground." When a second officer arrived, the first officer asked him to stay with Perry in the parking lot while she went up to talk to the couple who had called it in. She met the wife in the hallway just outside the open door to the couple's fourth-floor apartment. The witness said she had seen a tall, African-American man roaming the parking lot and looking into cars, eventually circling her neighbor's car and removing a large box (later found to contain car-stereo speakers). When the officer asked the witness for a more specific description of the man, she pointed to her kitchen window and said the person she saw was the man standing in the parking lot, next to the second officer. Perry was arrested. About a month later, however, the witness was not able to identify him from a photographic lineup. Perry moved to suppress the witness' earlier identification on due process grounds, arguing that the witness saw what amounted to a one-person showup in the parking lot, which all but guaranteed that she would identify him as the culprit. The trial court denied the motion, and Perry was tried and convicted. The New Hampshire Supreme Court affirmed.

On direct review, the Court also affirmed, 7-1-1. The Court's precedents establish a two-step inquiry for determining when due process requires the suppression of an out-of-court identification. First, the trial court must determine whether the police used an impermissibly suggestive identification procedure. If so, the trial court must then ask whether the procedure created a substantial likelihood of misidentification. A bad procedure does not necessarily lead to suppression. Rather, as the Court stated in Manson v. Brathwaite (1977), "reliability is the linchpin" in determining admissibility. Perry conceded that the officers in his case did not arrange the suggestive circumstances surrounding his identification (i.e., the officer didn't lead the witness to the window). Pointing to Brathwaite's emphasis on reliability, however, as well as studies showing that eyewitness identifications are particularly unreliable, Perry argued that due process was implicated even when the police don't create the suggestive circumstances. The Court, led by Justice Ginsburg, disagreed: "The due process check for reliability . . . comes into play only after the defendant establishes improper police conduct." A primary reason for excluding identifications obtained by impermissibly suggestive procedures is to deter the police from using those procedures. Deterrence is not a concern where the police do not act improperly. Perry's position would effectively require judges to prescreen most, if not all, eyewitness identifications. But determining the reliability of evidence is the traditional province of the jury, not the judge. The Court emphasized that the system has other safeguards for defendants, including an opportunity to cross-examine the witness, jury instructions, and, in appropriate cases, the opportunity to present expert testimony on the hazards of eyewitness evidence. Given these safeguards, the Court saw no reason to require a preliminary judicial inquiry into reliability absent improper state conduct.

Justice Thomas agreed with the Court's conclusion, but wrote a short concurrence to distance himself from the Court's line of eyewitness identification cases to the extent they recognized a "substantive" due process right to "fundamental fairness." He would limit those cases to the precise circumstances they involved.

Justice Sotomayor dissented. By her reading, the Court's precedents made no distinction between intentional and unintentional suggestion – due process concerns arose from the "corrosive effects of suggestion" on the reliability of the resulting identification, regardless of police intent. What was more, a vast body of scientific literature over the past three decades had reinforced every concern those precedents articulated: "The empirical evidence demonstrates that eyewitness misidentification is ‘the single greatest cause of wrongful convictions in this country.'" In particular, an eyewitness's artificially inflated confidence in the accuracy of his or her identification can impair the defendant's ability to attack the witness' credibility, and skew a jury's ability to assess the witness' reliability. Justice Sotomayor would have extended the Court's earlier, "more holistic conception of the dangers of suggestion," and required trial courts to apply the ordinary two-step inquiry regardless of whether the police created the suggestive circumstances intentionally or not.

In Pacific Operators Offshore, LLP v. Valladolid (10-507), the Court considered whether Juan Valladolid's widow was entitled to Longshore and Harbor Workers' Compensation Act (LHWCA) benefits pursuant to the Outer Continental Shelf Lands Act (OCSLA). Valladolid, a roustabout for petitioner Pacific Operators Offshore, spent about 98 percent of his working hours on Pacific's offshore drilling platforms on the Outer Continental Shelf (OCS). He died, however, in a forklift accident while on duty at an onshore facility. Section 1333(b) of the OCSLA extends LHWCA benefits to injuries "occurring as the result of operations conducted on the outer Continental Shelf." An Administrative Law Judge denied Mrs. Valladolid's claim for benefits and the appeal board affirmed, reasoning that Congress intended to limit OCSLA's reach to injuries suffered within the "geographical locale" of the OCS. The Ninth Circuit reversed, widening an existing circuit split about the reach of § 1333(b).

The Court concluded that Mrs. Valladolid is entitled to benefits under OCSLA. Writing for a seven-justice majority, Justice Thomas rejected the Fifth Circuit's view – favored by Pacific – that § 1333(b) bars recovery for any injury that does not occur offshore. OCSLA requires only that extractive operations be "conducted on the outer Continental Shelf" and that an employee's injury occur "as a result of" those operations. By including the "as a result of" language, Congress signaled its intent that OCSLA would reach at least some injuries occurring off the OCS. The Court also rejected the Third Circuit's "but for" test, which, taken to its logical extreme, could extend benefits to every onshore employee of a company with offshore activities if the employee's activities support the company's offshore activities in any remote way. Charting a path between these extremes, the Court focused on injuries that result from "operations" on the OCS and adopted the test applied by the Ninth Circuit (a rare victory for the Ninth!), which required that "the claimant must establish a substantial nexus between the injury and extractive operations on the shelf" to qualify for benefits. As Justice Thomas explained, the test requires the injured employee "to establish a significant causal link between the injury that he suffered and his employer's on-OCS operations conducted for the purpose of extracting natural resources from the OCS." The Court remanded the case for consideration of whether Mr. Valladolid, who died while performing onshore scrap metal consolidation, qualified for benefits under the newly articulated test.

Concurring in part and in the judgment, Justice Scalia, joined by Justice Alito, disagreed with the majority's articulation of the substantial-nexus test. Although Justice Scalia acknowledged that § 1333(b) compelled the Court to adopt an indeterminate standard, he would "prefer the devil we know to the devil of the Ninth Circuit's imagining," and, accordingly, would hold that any employee may recover if an injury was proximately caused by operations on the OCS. He noted that a proximate cause standard had been imported from tort law into other no-fault schemes, including state workers' compensation laws, and that proximate cause provides precedent as well as a "vocabulary" for answering questions that the majority's substantial-nexus test – "an indeterminate phrase that lacks all pedigree" – does not. In Justice Scalia's view, the new test – which appears to fall somewhere between a but-for test and proximate cause – will create unnecessary uncertainty: "What a tangled web we weave."

We'll likely be back with more orders and decisions next week. Until then, thanks for reading and – for those who have it – enjoy the three-day weekend!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400.