The Fifth Judge: Thompson v. Heineman and Nebraska’s Judicial Supermajority Clause
bhildebrand
The Fifth Judge:
Thompson v. Heineman and Nebraska’s Judicial Supermajority Clause
Kathleen Miller, University of Nebraska College of Law
J.D. Candidate, 2016
Introduction: History of the Case
When TransCanada proposed its Keystone XL route in 2008, it likely did not believe that the proposal would face much opposition. After all, TransCanada already had another pipeline running through Nebraska. The thought that the project would be at a standstill seven years later seemed unfathomable.
Things changed quickly. By 2011, the debate over the pipeline had surged to the forefront of the national stage, with Nebraska squarely in the middle of the controversy. Following a 2011 special session in which Nebraska legislators passed a series of bills dealing with the state’s pipeline permitting process, Nebraska passed an additional piece of legislation in the 2012 regular session, LB 1161. Whereas legislation passed during the 2011 special session required pipeline applicants to obtain approval from the Public Service Commission (“PSC”), LB 1161 allowed “major oil pipeline” carriers to bypass the PSC and receive approval from the governor to exercise eminent domain in the state.[1] Landowners challenged the law on the grounds that it was unconstitutional for a variety of reasons, including that it was an unlawful delegation of power to the governor. By the time Thompson v. Heineman[2] reached the Nebraska Supreme Court, it appeared that the case would definitively decide LB 1161’s fate.[3]
However, the manner in which the Court eventually decided Thompson did not resolve the constitutional issues surrounding LB 1161. Invoking a rarely used rule, four out of seven judges found LB 1161 unconstitutional, but vacated the entirety of the lower court’s decision due to Nebraska’s “judicial supermajority” or “five judges” clause. The requirement that five judges hold a law unconstitutional in order to strike it down is found in Neb. Const. art. V § 2:
The supreme court shall consist of seven judges, one of whom shall be the Chief Justice. A majority of the judges shall be necessary to constitute a quorum. A majority of the members sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges.[4]
In Thompson, only four judges decided that LB 1161 was unconstitutional – one judge short of the five needed to strike down the law.
Part I of this article discusses the history of the judicial supermajority clause in both Nebraska and other states. Part II of this article examines the effects of the supermajority clause on cases before the Nebraska Supreme Court and how the clause came into play in Thompson v. Heineman.
Part I: The Origins of the Judicial Supermajority Clause
Judicial supermajority clauses are extremely rare in American law, but are not a new idea. Several states have contemplated amending their constitutions to include a supermajority clause. Additionally, proposals to require the Supreme Court of the United States to have a “six-three” supermajority requirement occasionally arise from time to time.[5] However, only Ohio, North Dakota, and Nebraska have ever actually enacted a judicial supermajority. All three states adopted their supermajority requirements during the Progressive Era, all seemingly in response to the Supreme Court’s decision in Lochner v. New York or by populist sentiment.[6] Ohio adopted the requirement in 1912, North Dakota in 1919, and Nebraska in 1920. [7]
For Ohio, its 1912 Constitutional Convention was a clash of ideologies between conservative business interests seeking to change the tax system and Progressives trying to enact a series of reforms, including reform of the state’s complicated court system.[8] The Progressives were particularly upset that the Ohio Supreme Court had recently invalidated a series of laws passed by the Progressive movement, mainly dealing with workers rights.[9] Early on, one delegate proposed a provision which would require a unanimous decision by the Court to invalidate a statute.[10] The proposed provision was heavily debated, but eventually passed, requiring “all but one” of the judges of the Ohio Supreme Court to agree in order to invalidate a state law.[11] Yet, Ohio’s judicial supermajority clause was short-lived. By the 1960’s, issues with the “all but one” requirement were easily apparent.[12] Many of the problems were a result of Ohio’s unique court structure and whether the lower court had held the challenged law as constitutional or unconstitutional.[13] Of particular embarrassment, several statutes concerning limits on freedom of speech were found to be unconstitutional, but remained on the books due to the supermajority clause – only to be later overturned by the United States Supreme Court on First Amendment or other constitutional grounds.[14] The supermajority requirement was repealed on May 7, 1968, sparking almost no debate.[15] For Ohio, the judicial supermajority clause was a “well-intentioned experiment [that] was at best a noble failure, at worst a disaster that endured far too long.”[16]
North Dakota implemented its “four judges” supermajority requirement in 1919.[17] The amendment was proposed as part of an omnibus provision by the Nonpartisan League (“NPL”), which controlled the North Dakota House of Representatives.[18] Similar to concerns expressed by Ohio delegates, the proponents of North Dakota’s “four judges” clause worried that the state Supreme Court might undo hard-fought legislative reform. NPL “feared a Supreme Court, dominated by justices linked to its opponents, might invalidate important parts of its measures to aid farmers against business interests seen as antithetical.”[19] While the omnibus provision was defeated by the North Dakota Senate, the amendment survived when it was offered by non-NPL senators as an individual resolution.[20] The amendment passed during the general election in November 1918 and is still in place today.[21]
Similar to Ohio’ judicial supermajority clause, Nebraska’s clause resulted from a state constitutional convention. Facing a series of shortcomings within the Nebraska Constitution of 1875, the Legislature called for a constitutional convention in 1917.[22] Nine of the 336 proposals at the convention dealt with the powers of the state Supreme Court to declare acts of the legislature unconstitutional.[23] Two elements in play greatly influenced the adoption of the “five judge” requirement: the existence of the NPL (as in North Dakota) and the support of William Jennings Bryan. The NPL, a populist movement with strong support in the state at the time, fiercely advocated for a proposal which would prevent the state Supreme Court from invalidating a legislative measure on constitutional grounds at all.[24] Mindful of the public’s views, and worried about how the amendments might be received when they were put to a public vote in light of the “high nonpartisan sentiment”, the delegation compromised with the NPL and raised the required number of justices for a finding of unconstitutionality from a simple majority to the “five judges” requirement.[25] In addition to the NPL’s popularity, Bryan himself directly addressed the Nebraska Convention. Bryan’s remarks reflected both Ohio and North Dakota’s reasons for enacting a judicial supermajority requirement – restraining the judiciary’s power to conduct judicial review. In his remarks, Bryan stated:
The fundamental principle of popular government, whether coercive or co-operative, is that the people have a right to have what they want in government … Not that the people will make no mistakes, but that the people have a right to make their own mistakes … The supreme court only should have power to declare a law unconstitutional, and it only by three-fourths vote of the court. It is not fair to the legislators or to those who elect them – especially when we have referendum – to allow what they have declared to be the people’s will to be overthrown by a judge.[26]
When the five judge rule was presented to the public during a special election, only 77,586 voted on the proposal – compared to the presidential election turnout six weeks later of 382,653.[27] For Nebraska, “[t]he minority control of the supreme court under the five judge rule was definitely adopted by a distinct minority of the qualified voters within the state.”[28] There have been attempts to eliminate the five judges clause, including during the 1970 proceedings of the Nebraska Constitutional Revision Commission.[29] While the Commission could find “no good reason” to keep the provision, it was not repealed. [30]
Part II: The Judicial Supermajority Clause in Nebraska Courts
Following its adoption to the Nebraska Constitution, the judicial supermajority clause lay dormant for several decades. It was first used as a deciding factor in two 1968 cases – In re Cavitt[31] and DeBacker v. Brainard[32]. While occasionally mentioned in subsequent case law[33], the clause was not employed as the deciding factor in a case again until State ex rel. Spire v. Beermann[34] in 2000, and then not again until Thompson.
Effectively, the clause operates to protect legislation that would otherwise be found to be unconstitutional and allows that legislation to stand. In re Cavitt involved a state statute that required mental patients to be sterilized as a condition of being released from a state home.[35] While four judges found the law to be unconstitutional, the supermajority clause forced the Court to allow the statute to stand.[36] A similar situation arose in Brainard, in which only four judges found the Juvenile Court Act, which allowed juvenile offenders to be tried without a jury trial and applied a “preponderance of the evidence” standard instead of the traditional “beyond a reasonable doubt” standard, to be unconstitutional.[37] In State ex rel. Spire v. Beermann, the Nebraska Supreme Court considered the constitutionality of legislation which transferred Kearney State College into the University of Nebraska system.[38] While four judges determined that the legislation was unconstitutional, the Court upheld the statute based on the judicial supermajority requirement.[39]
The judicial supermajority clause was not used again as a determining factor in a case until Thompson v. Heineman. In Thompson, the plaintiffs sought to strike down LB 1161 as unconstitutional. Their first argument stemmed from the Act’s delegation of powers to normally possessed by the Public Service Commission to the Governor. As four judges of the court pointed out, the PSC constitutes a unique agency under Nebraska law – “an independent regulatory body for common carriers.”[40] Under Neb. Const. art. IV, § 20, “the powers and duties of [the PSC] shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law.”[41] In Thompson, four judges determined that the proposed KXL pipeline qualified as a “common carrier” and thus fell under the PSC’s powers, rendering LB 1161 unconstitutional.[42] The same four judges further found LB 1161 unconstitutional because it unlawfully delegated the power to grant eminent domain to private organizations by the governor, when only the legislature may grant eminent domain powers.[43]
With a simple majority of the bench, in any other case, before almost any other appellate court in the country, the plaintiffs would have won the day. Four out of seven judges found LB 1161 unconstitutional. However, the three remaining judges did not reach any conclusions on the constitutionality of LB 1161, finding instead that the plaintiffs’ grounds for standing under a “resident taxpayer” rule insufficient.[44] Due to Nebraska’s judicial supermajority clause, LB 1161 was allowed to remain on the books as good law while the case was remanded back to the district court.
The Court was not wrong in hinging its decision on the provision – the majority only had four judges, and the court is constitutionally bound to have five concurring judges in order to strike down a state law as unconstitutional. Still, perhaps more vividly than other cases before it, Thompson highlights the negative impacts of a judicial supermajority clause. First, while the Thompson decision did not conclusively rule on the constitutionality of LB 1161, every judge reaching the merits of the case determined that LB 1161 is unconstitutional.[45] Effectively, the clause allows LB 1161 to remain good law in the state, not because any judge reaching the merits of the case determined that it passed constitutional muster, but only because the plaintiffs failed to convince a fifth judge on the court to find the law unconstitutional. Arguably, this tips the balance of power between the state branches of government too far in favor of the legislature. Nebraska’s unique unicameral legislature already consolidates power into one house.[46] Without a second legislative body, Nebraska’s legislature is not confined by the traditional “checks and balances” of a two-house legislature, resulting in fewer hurdles for legislation to pass before being enacted into state law.[47] In light of this structure, an “independent and unhampered judiciary” seems even more critical to preserve the balance of power between the three branches.[48] Instead, the judicial supermajority clause allows the legislature to insulate itself from being held accountable when it passes laws that are arguably unconstitutional. Second, in the case of Thompson, the clause works against judicial efficiency – by blocking the Court from conclusively ruling on the constitutionality of LB 1161, further litigation is required to definitely resolve the constitutional issues. On a larger scale, this in turn has led to the controversy surrounding the Keystone XL pipeline to be drawn out even further.
Conclusion
At the end of the day, the Court’s decision to invoke the supermajority clause did not conclusively spell disaster for landowners or a clear victory for TransCanada. The Thompson case remained very much alive after it was vacated, and could work its way back up to the Nebraska Supreme Court. Meanwhile, two other cases challenging LB 1161, one in York County and the other in Holt County, are currently proceeding based on traditional standing after TransCanada began eminent domain proceedings against landowners in those counties.[49] The constitutionality of LB 1161 will likely come before the Court again soon.
However, the merits of Nebraska’s judicial supermajority clause remains an open question. On one hand, the measure strengthens the separation of powers in the state by acting as a check on the judiciary’s power of judicial review. Nevertheless, it prevents very real constitutional issues from being definitively resolved and allows potentially unconstitutional laws to continue to exist based on a mere technicality.[50] Further, it hinders judicial efficiency and arguably tips the balance of powers too far in favor of the legislature.
For now, the judicial supermajority clause remains alive and well in Nebraska. As Thompson demonstrates, litigants raising constitutional issues against state laws in Nebraska should remain vigilant about the potential effects the clause may have on their case. Should they ever reach the Nebraska Supreme Court, they will have to focus on more than a simple majority of the bench – they will have to persuade a fifth judge in order to prevail.
Download article here (.pdf) Preferred Citation Format: Kathleen Miller, The Fifth Judge: Thompson v. Heineman and Nebraska’s Judicial Supermajority Clause, 6 Neb. L. Rev. Bull. 1 (2015).[1] Thompson v. Heineman, 289 Neb. 798, 802, 857 N.W.2d 731, 240 (2015).
[2] Id.
[3] Joe Duggan, Ruling on Keystone XL pipeline could come down to two key points, Omaha World Herald (Sep. 2, 2014), http://www.omaha.com/news/nebraska/ruling-on-keystone-xl-pipeline-could-come-down-to-two/article_8b64c55d-21de-5bfa-a246-4e4fe5002a66.html.
[4] Neb. Const. art. V § 2.
[5] Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893 (2003).
[6] Sandra Zellmer, Keystone XL Pipeline Route through Nebraska Upheld on Constitutional Technicality – for Now, CPRBlog (Jan. 15, 2015), http://www.progressivereform.org/CPRBlog.cfm?idBlog=EEC8FFCB-942B-4764-55172CC3E973EEF8.
[7] Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rules: Lessons from the Past, 78 Ind. L. J. 73, 90-94 (2003).
[8] Jonathan L. Entin, Judicial Supermajorities and the Validity of Statutes: How Mapp Became a Fourth Amendment Landmark Instead of a First Amendment Footnote, 52 Case W. Res. L. Rev. 441, 443 (2001).
[9] Id. at 443-44.
[10] Id. at 445.
[11] Id. at 451.
[12] Id. at 464.
[13] The Ohio supermajority clause applied to cases of original jurisdiction and cases from one of the state’s lower courts of appeal if that court had upheld the challenged law as constitutional. If the lower court found the law to be unconstitutional, only a simple majority of the Ohio Supreme Court was needed to affirm. Id. at 455.
[14] Id. at 463. (citing State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387 (1960) overruled by Mapp v. Ohio, 367 U.S. 643 (1961); Superior Films, Inc. v Dep’t of Educ., 159 Ohio St. 315, 112 N.E.2d 311 (1953), overruled by Superior Films, Inc. v. Dep’t of Educ., 346 U.S. 587 (1954) (per curiam)).
[15] Entin, supra note 8, at 465-66.
[16] Id. at 466.
[17] Herbert L. Meschke and Ted Smith, The North Dakota Supreme Court: A Century of Advances, 76 N.D. L. Rev. 217, 248 (2000).
[18] Id. at 247.
[19] Id.
[20] Id. at 248.
[21] Id.
[22] Paul W. Madgett, Comment, The “Five Judge” Rule in Nebraska, 2 Creighton L. Rev. 329, 330 (1969).
[23] Id. at 330.
[24] William Jay Riley, Comment, To Require that a Majority of the Supreme Court Determine the Outcome of Any Case Before It, 50 Neb. L. Rev. 622, 625 (1971).
[25] Id. at 626
[26] Id. (citing 1 Proceedings of the Constitutional Convention 1919-20, 307, 319 (1920)).
[27] Id. at 627.
[28] Id.
[29] Id. at 647.
[30] Id. at 622-23.
[31] In re Cavitt, 182 Neb. 712, 157 N.W.2d 171 (1968).
[32] DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968).
[33] See State ex rel. Belker v. Bd. of Educ. Lands and Funds, 185 Neb. 270, 175 N.W.2d 63 (1970) (dismissed on jurisdictional grounds); State v. Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005) (decided on other grounds).
[34] State v. Beermann, 235 Neb. 384, 455 N.W.2d 749 (1990).
[35] In re Cavitt, 182 Neb. at 714-15, 157 N.W.2d at 174.
[36] Id. at 726-27, 157 N.W.2d at 181 (Newton, J. dissenting).
[37] DeBacker v. Brainard, 183 Neb. 461, 461, 161 N.W.2d 508, 509 (1968).
[38] Beermann, 235 Neb. at 386, 455 N.W.2d at 750.
[39] Id. at 385.
[40] Thompson v. Heineman, 289 Neb. at 831, 857 N.W.2d at 757.
[41] Neb. Const. art. IV, § 20.
[42] Thompson, 289 Neb. at 835, 857 N.W.2d at 759.
[43] Id. at 845, 857 N.W.2d at 765.
[44] Id. at 859, 857 N.W.2d at 773-74 (Heavican, C.J.) (dissenting in part, and in part concurring in the result).
[45] In addition to the four judges in Thompson, the trial court judge also found LB 1161 unconstitutional. See Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014).
[46] Riley, supra note 24, at 636.
[47] Id.
[48] Id.
[49] Joe Duggan, Nebraska opponents of Keystone XL pipeline reignite legal fight over state routing law, Omaha World Herald, Jan. 17, 2015, http://www.omaha.com/news/nebraska/nebraska-opponents-of-keystone-xl-pipeline-reignite-legal-fight-over/article_e9729cfe-af5c-5bf4-8774-45b157adcaa3.html.
[50] Zellmer, supra note 6.
Keystone XL and Nebraska’s Judicial Supermajority Clause: A Brief Introduction
bhildebrand
Many are familiar with the Keystone XL due to the political controversy surrounding the pipeline. Of central relevance to Nebraska, it is difficult to open a newspaper, scroll through a Twitter feed, or discuss environmental issues without the topic rising to the forefront of conversation. However, what many people are unaware of is Nebraska’s judicial supermajority clause. This affects not only LB 1161, which changed the pipeline permitting process in Nebraska, but any state statute challenged on constitutional grounds. Kathleen Miller, J.D. Candidate, 2016, offers insight into this often forgotten area of particular peculiarity in Nebraska and its effect on Keystone XL. Katie’s article, may be found here and directly linked to from the Bulletin. The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor.
The Nebraska Law Review Joins Twitter
bhildebrand
In an effort to increase its online presence, the Nebraska Law Review, has joined the twitter community. Please follow the Review @NebLRev for helpful information and updates regarding Nebraska and 8th Circuit issues.
Any comments or questions may be directed to Briana Hildebrand, the Online Editor.
Disability Discrimination in the Form of Ad Hoc Examinations: A Brief Introduction
bhildebrand
Nearly every Employment Law casebook, course, and lecture includes at least some mention of the Americans with Disabilities Act. In addition to the ADA, the Nebraska Fair Employment Practice Act prohibits discrimination in the workplace. Under either Act, an employer-mandated medical examination of an individual with disabilities is presumed to be unlawful discrimination. Thomas E. Simmons, an associate professor at the University of South Dakota School of Law, examines the business necessity defense available to rebut this presumption as articulated by the Nebraska Supreme Court in Arens v. NEBCO, Inc. Professor Simmons’ article may be found here and directly linked to from the Bulletin. The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor.
2015 Nebraska Law Review Write-On Competition
bhildebrand
This post contains materials for the 2015 University of Nebraska College of Law annual write-on competition.
This competition is open to UNL Law students who have completed their 1L year or are a transfer student, and have two (2) or more remaining (non-summer) semesters left. Further instructions are available in the attached materials.
If you have any questions, please contact Amy Peters, Research Editor.
Best of luck!
2014 Nebraska Law Review Write-On Competition
pbdonahue
This post contains materials for the 2014 University of Nebraska College of Law annual write-on competition.
This competition is open to UNL Law students who have completed their 1L year or are a transfer student, and have two (2) or more remaining (non-summer) semesters left. Further instructions are available in the attached materials.
If you have any questions, please contact Sarah Hindman, Research Editor, at sarahnhindman@gmail.com.
Best of luck!
Materials for 2014 Write-On Competition
Disability Discrimination in the Form of Ad Hoc Examinations
bhildebrand
Disability Discrimination in the Form of Ad Hoc Examinations
Thomas E. Simmons*
* Thomas E. Simmons is an assistant professor at the University of South Dakota School of Law.
ABSTRACT
The 1990 Americans with Disabilities Act (ADA), alongside the Nebraska Fair Employment Practice Act (FEPA), prohibit discrimination against employees on the basis of disability. One of the lesser examined provisions of the twin acts presumes that employer-mandated medical examinations of individuals with disabilities amount to unlawful discrimination unless the employer can demonstrate a business necessity. The precise elements of a business necessity defense were articulated and explicated by the Nebraska Supreme Court in the recently decided case of Arens v. NEBCO, Inc.
I. INTRODUCTION
In Arens v. NEBCO, Inc., the Nebraska Supreme Court reversed a defense jury verdict on account of an erroneous evidentiary ruling.1 Lenard Arens, a truck driver, sued his employer under Nebraska’s counterpart to the ADA, the Nebraska Fair Employment Practice Act, which prohibits discrimination because of disability.2 In remanding Arens’ case for a new trial, the court adopted federal case law interpreting analogous provisions of the ADA dealing with medical examinations of employees. To avoid liability, an employer must now establish a three-part showing of business necessity when it requires an employee to submit to a medical examination. Arens displays principled statutory interpretation while giving effect to the legislative aim of achieving workplaces which are free from discrimination against individuals with disabilities.3
II. STATUTORY BACKGROUND
Nebraska’s unicameral legislature adopted the Nebraska Fair Employment Practice Act in 1965, just one year after Title VII on which it was modeled.4 Discrimination on the basis of disability was added to the list of prohibited characteristics (e.g., race and religion) on which employment decisions can be made in 1973.5 Nebraska’s civil rights protections thus predated the congressional mandate of the ADA by seventeen years.6
What distinguishes disability discrimination from discrimination on the basis of characteristics race or religion is that it is not enough for an employer to ignore the existence of the characteristic. With racial discrimination, for example, a “color blind” approach typically relieves the employer of liability. With disability, however, ignoring the existence of a disability is insufficient—in some contexts, responding to the employee’s disability is necessary in order to accommodate an employee’s particular needs and impairments so that they can successfully meet the requirements of the job. Thus, disability discrimination can occur when a qualified disabled worker is terminated on account of a disability, and it can also occur when a disabled worker is not given the accommodations that would permit her to do her job.7
As part of the comprehensive protections for individuals with disabilities, employer-mandated medical examinations are permitted only in narrowly-defined circumstances. Following the enactment of the ADA in 1990, the Nebraska legislature adopted amendments to FEPA which, mirroring the ADA, forbade employee medical examinations except where job-related and consistent with a business necessity.8 Those provisions were squarely implicated in Arens.
III. THE FACTS
Nebco hired Lenard Arens in 1976.9 Soon, Arens was driving a concrete truck, but ten years into his career with Nebco, he shattered his kneecap in a work-related accident.10 After his injury healed, Arens found it hard to drive a concrete truck in Lincoln, Nebraska’s traffic on account of the strain on his “clutch leg.” It was also hard for him to wash out the mixing drum, required several times a day since that required climbing a ladder with partial handholds. As an accommodation, Arens was assigned to tractor-trailers and delivered unmixed concrete materials to job sites. This was easier on his leg.11
In 1996, Arens was making a concrete delivery with a flatbed truck. Somehow, he fell and sustained a traumatic brain injury. He was unable to work for six months. His speech, emotional stability, and memory were permanently affected. Rehabilitative therapy allowed him to return to work, but persistent dizziness made driving a concrete truck with ladders even less realistic.12
Nebco responded in ways that the drafters of the ADA and FEPA would praise. Arens’ co-workers developed the habit of giving Arens written instructions to accommodate his short-term memory deficits. His supervisor, Ron Hansen, kept Arens from the concrete trucks and the one flatbed truck equipped with a forklift because of Arens’ problems with dizziness. (A driver must climb onto the back of the trailer and then up and into the forklift.) Instead, Hansen assigned Arens to the flatbed trucks without a forklift and he never again assigned him to the concrete trucks.13
Hansen supervised Arens for 28 years but in the summer of 2006 Hansen retired. He was replaced by Gordon Wisbey. Arens began to feel that Wisbey was ignoring his impairments and singling him out.14 Arens continued to see a mental health counselor and manage his emotional instabilities and cognitive impairments.
That fall, Arens was distracted by a guard directing traffic as he turned into a job site. An electrical switchbox was damaged. Arens dutifully completed a damage report the same day, but Wisbey reprimanded him. Nebco, Wisbey warned, would not tolerate that kind of behavior and further instances would result in more severe consequences, “up to and including termination.” Two years later, when one of Nebco’s junior drivers complained about driving the forklift truck, Wisbey told Arens that he was being re-assigned to drive the forklift truck. Arens later testified that he told his supervisor the forklift truck was difficult for him on account of his impairments, but that he feared losing his job if he did not comply.15
On Monday, December 6, 2010, Arens had another minor accident as he turned into Nebco’s driveway off of Cornhusker Highway.16 Cars were approaching rapidly and Arens turned the corner sharply—at 10 miles per hour – to avoid an accident. A tarp box on the underside of the trailer hit the grass, scraping up some sod. The tarp box itself was undamaged. Other trucks had—Arens later claimed with photographic support—run over the grass in the same place. Arens told a dispatcher that a damage report was unnecessary because there had been no damage to the truck. The next day, when Wisbey asked Arens why he had not filed an report, Arens explained that there had been no truck damage. Wisbey later claimed the cost to repair the sod was about $250. Arens fixed some of it himself.17
According to Arens, his coworkers then overloaded a forklift truck for a Wednesday delivery in the Lincoln city limits. Arens complained about the weight of the materials and the way they had been stacked, but he made the delivery. As he maneuvered a roundabout, however, the trailer frame hooked the tractor (because, Arens would explain, of the excessive weight).When he arrived on the job site, the customer objected, saying he had not ordered so much material.18
At the end of the Wednesday workday, Arens filed a “maintenance report,” but not a “damage report.” On Thursday, Wisbey, “had already talked to the general manager and had developed a plan for dealing with Arens.” Wisbey completed a damage report for Arens and told him if he had been at work on Monday, he would have fired him. Arens was dumbfounded. He was terrified.19
Early Friday morning, Arens’ worst fears were confirmed. Wisby, in what Arens claimed was an angry and berating tone, explained to him that he was being reassigned from tractor-trailers back to concrete trucks. As it was winter, no one was ordering premixed concrete, so Arens was effectively laid off. Arens broke down and cried. He begged to be allowed to drive a flatbed without the forklift again. Arens was emotionally overwhelmed, avoided eye contact, and kept his head in his hands. The meeting lasted three hours.20
Later, Wisbey, under cross examination, would admit that he himself had had accidents driving a concrete truck. He conceded that other drivers had failed to file reports. He acknowledged that he had never before reassigned a driver for failing to file a report. And he admitted that other drivers had had accidents under his supervision—as many as twenty. None of those drivers had been reassigned.21
On Monday morning, Wisbey scheduled Arens for an occupational health screening. Later that day, he referred Arens to an employee counseling program. The Nebraska Supreme Court would characterize both appointments as medical examinations.22
The nurse who performed the occupational health screening was instructed by Nebco to screen for Arens’ ability to drive a concrete truck. Arens had only recently completed a physical to maintain his commercial driver’s license and a screening would not have been required if Arens could have simply returned to driving his former truck. The examination revealed that Arens could not climb an 18-inch step. Initially, the nurse reported that Arens could drive his former truck, if not a concrete truck. Later, she documented that Arens could not drive his former truck either. When Arens was told of the results of the screening, he became upset. Wisbey, concerned, told him that he needed to meet with a counselor and told him that if he did not, it would affect his laid-off employment status.23
According to Arens, Wisbey delivered this directive by throwing a counseling card and pamphlet at him; Wisbey did not write out any instructions or explain why Arens should attend counseling. Arens claimed that he told Wisbey that he saw a psychologist on a regular basis. Wisbey ignored him. Soon thereafter, Arens called the counselor’s office and explained that he was already seeing a psychologist. The counselor told Arens that it was not mandatory that he receive counseling from that office if he was seeing a counselor elsewhere. Within a week, Nebco fired Arens, citing his failure to report to employer-mandated counseling.24
IV. DISCUSSION
At trial, Arens claimed, among other things, that the medical screening and mandatory counseling violated Nebraska Revised Statute Section 48-1107.02(j).25 That statute prohibits mandatory medical examinations of current employees with disabilities except where the examination is “job-related and consistent with business necessity.”26 Nebco claimed that once it transferred Arens back to driving a concrete truck, it had the right to ensure that he could operate it safely; that a fitness-for-duty was both job-related and a business necessity, the necessity being safety. For similar reasons, Nebco justified mandatory counseling based on its concerns about Arens’ emotional stability.
In adopting the federal standards for medical examinations of individuals with disabilities, the Arens Court recognized the importance of workplace safety concerns, but suggested that Nebco’s business necessity defense would not be easy to establish.27 “[O]nce an employee is doing a job,” the Court noted, “actual performance is the best measure of his or her ability and [so] medical examinations should be rarely required of employees.” 28While acknowledging that whether Arens could physically drive a truck “was vital to Nebco’s business”, Nebco would have to show “significant evidence that a reasonable person would doubt that the employee could perform the essential functions of the job, with or without reasonable accommodations, because of a medical condition.”29
A three-part evidentiary showing from the employer is required. First, the business necessity must be vital to the business (with the court acknowledging that a vital business interest was indeed present; a bona fide safety concern).30 Second, the employer must have “a legitimate, nondiscriminatory reason to doubt the employee’s ability to perform the essential functions of his or her duties.”31 Annoying employee behavior or inefficient job performance standing alone cannot justify an exam; there must be “genuine reason” to doubt an employee’s abilities to execute their job functions.32 Third, the examination itself must be narrowly tailored; “no broader than necessary.”33
Before the district court, Nebco argued that the occupational screening and counseling “were tailored to the job’s duties.”34 Before the Supreme Court, Nebco emphasized that Arens had been required to pass an occupational screening test just like every other driver and pointed out that driving a concrete truck imposed different physical requirements than driving a flatbed. None of these assertions would be enough to achieve a business necessity defense, the Nebraska Supreme Court made clear.35 Rather, the primary issue, on remand, would be “whether Nebco presented substantial evidence that it had a nondiscriminatory reason to doubt Arens’ physical ability to perform the essential functions of driving a concrete truck or tractor-trailer, with or without reasonable accommodations” and, as to the psychological counseling, whether Nebco had substantial evidence of nondiscriminatory reasons to doubt Arens’ mental abilities to perform his job’s essential functions – with or without any reasonable accommodations.36
V. CONCLUSION
Arens demonstrates the strength of anti-discrimination protections for individuals with disabilities in the context of employment. Employers do have the ability to impose necessary, narrowly-tailored medical examinations to ensure workplace safety. Yet employers may often require workplace examinations as a pretext for discrimination on account of an employee’s disability. When an ad hoc examination is required without a preexisting policy that applies to a given situation, a strict application of the business necessity defense will be imposed.
The Arens Court’s adoption of a three-part business necessity defense to examinations in employment is consistent with the FEPA’s similarity to the ADA’s employment provisions. In fact, the provisions governing medical examinations of current employees are identical.37 The adoption of the federal courts’ phraseology of the business necessity defense to employer mandated medical examinations also honors the express legislative intent of the Nebraska Unicameral.38
1. No. S-14-290, 2015 WL 5460677, *18, 291 Neb. 834, 868, — N.W.2d — (Neb. Sept. 18, 2015).↩
2. See NEB. REV. STAT. §§ 48-1101 to 48-1126 (2014).↩
3. 1965 Neb. Laws ch. 276, § 1; see also NEB. REV. STAT. § 48-1101 (2014) (proclaiming: “It is the public policy of this state that all people in Nebraska, both with and without disabilities, shall have the right and opportunity to enjoy the benefits of living, working, and recreating within this state.”).↩
4. 1965 Neb. Laws 782; see also Airport Inn v. Neb. Equal Opportunity Comm’n, 353 N.W.2d 727, 731 (Neb. 1984) (noting that FEPA “is patterned from that part of the Civil Rights Act of 1964”).↩
5. 1973 Neb. Laws, LB 266 § 1.↩
6. But see Rehabilitation Act of 1973 at 29 U.S.C. § 791, et seq. (2014) (providing limited protections for individuals with disabilities).↩
7. See NEB. REV. STAT. § 48-1107(1)(e) (2014) (defining discrimination as “[n]ot making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”); 42 U.S.C. § 12112(b)(5)(A) (2015) (same); see also NEB. REV. STAT. § 48-1104(1) (2014) (making it unlawful “to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s … disability”).↩
8. Arens v. NEBCO, Inc., No. S-14-290, 2015 WL 5460677, at *15 (Neb. Sept. 18, 2015).↩
9. Id. at *5.↩
10. Id.↩
11. Id.↩
12. Id.↩
13. Id. at *5, 6.↩
14. Id. at *5.↩
15. Id. at *6.↩
16. Brief of Appellant at 14, Arens v. NEBCO, Inc., No. S-14-290, 2015 WL 5460677 (Neb. Sept. 18, 2015).↩
17. Arens, 2015 WL 5460677, at *6, 7.↩
18. Id. at *7.↩
19. Id. at *7.↩
20. Id.↩
21. Id.↩
22. Id. at *16, n. 47.↩
23. Id. at *8.↩
24. Id. at *9.↩
25. Lenard Arens also argued – and the court agreed – “that Nebco could not transfer him for his known physical and mental impairments [to driving a concrete truck] without first making reasonable accommodations or showing that it could not make accommodations.” Arens, 2015 WL 5460677, *14.↩
26. NEB. REV. STAT. § 48-1107.02(j) (2014). Another provision applies to medical examinations of job applicants. NEB. REV. STAT. § 48-1107.02(i) (2014). The Lancaster county district court confused the two provisions. Arens, 2015 WL 5460677, *17.↩
27. See Arens, 2015 WL 5460677, at *16 (describing the business necessity defense to medical examinations of employees with disabilities as “a high standard.”) citing 1 JONATHAN R. MOOK, AMERICANS WITH DISABILITIES ACT: EMPLOYEE RIGHTS & EMPLOYER OBLIGATIONS § 5.04[3][b] (2004); Deborah H. Buckman, Annotation, Construction and application of § 102(d) of Americans with Disabilities Act (42 U.S.C.A. § 12112(d)) pertaining to medical examinations and inquiries, 159 A.L.R. FED. 89 (2000); see also Chai R. Feldblum, Medical Examinations and Inquiries under the Americans with Disabilities Act: A View from the Inside, 64 TEMP. L. REV. 521, 535 (1991) (emphasizing that employers cannot “require broad, wide-ranging medical examinations–of either applicants or employees” without demonstrating “that the results of the examinations were necessary to insure the applicants’ or employees’ ability to perform the job.”). The business necessity standard is an objective test. Arens, 2015 WL 5460677, at *16.↩
28. Arens, 2015 WL 5460677, at *16.↩
29. Id. at *17.↩
30. Id. at *16.↩
31. Id.↩
32. Id., quoting Sullivan v. River Valley School Dist., 197 F.3d 804, 811 (6th Cir. 1999).↩
33. Arens, 2015 WL 5460677, at *17.↩
34. Id.↩
35. Id. The court was unimpressed by Nebco having argued, on the one hand, that examining Arens for his fitness to drive the concrete truck to which he had been reassigned was necessary because a concrete truck involved different physical requirements than a flatbed, while “inconsistently argu[ing] that Wisbey did not anticipate any problems with transferring Arens because climbing the ladder on a concrete truck was very similar to the climbing that Arens had to do to get into the forklift on the back of his tractor-trailer.” Id.↩
36. Arens, 2015 WL 5460677, at *17.↩
37. Compare NEB. REV. STAT. § 48-1107.02(j) (2014) with 42 U.S.C. § 12112(d)(4)(A) (2014).↩
38. See Arens, 2015 WL 5460677, at *15 (noting that the Nebraska legislature “intended that its 1993 amendments to [FEPA] would provide the same protections” as the ADA) (citing Introducer’s Statement of Intent, L.B. 360, Business and Labor Committee, 93rd Leg., 1st Sess. (Jan. 29, 1993)).↩
Preferred Citation Format: Thomas E. Simmons, Disability Discrimination in the Form of Ad Hoc Examinations, 6 Neb. L. Rev. Bull. 2 (2015).
The Historical Case for Abandoning Strickland
Brian R. Gallini
I. Introduction
II. The Strange Right-to-Counsel Journey ... A. The Journey to Strickland ... B. Defining Who Is “Effective” Counsel
III. Strickland’s Untold Story ... A. Part V’s Analytical Fallacies ... 1. Tunkey’s Suppression Motions, Sentencing Memorandum, and Performance at Sentencing ... 2. Character Evidence, Psychological Evidence, and Giving Up on David Washington ... 3. Washington’s “Rap Sheet” ... B. The Disutility of Part V ... C. Justice O’Connor’s Private and Unspoken War
IV. Conclusion
Our Court Masters
Chad J. Pomeroy
I. Introduction
II. The Gun or the Salute
III. The Limits of Volunteerism
IV. Different Views of How Courts View Their Role ... A. The Dynamic Court View and the Constrained Court View of the Courts ... B. All Views Eventually Answer to Society
V. When Courts Exceed Perceived Social Norms, They Risk Their Own Legitimacy ... A. The Resistant Psychology of Contrary Directives ... B. Examples of Courts Stretching Social Norms ... C. Legitimacy Undermined: The Fallout of Stretching Social Norms ... D. A Contemporary Narrative
VI. Conclusion
Preparing to Open Up Shop: How the Supreme Court Set the Stage to Prohibit Public-Sector Agency-Shop Provisions in Harris v. Quinn, 134 S. Ct. 2618 (2014)
Chris Schmidt
In 2014, the United States Supreme Court held in Harris v. Quinn that a quasi-public employee cannot be compelled to pay even her fair share of collective bargaining costs associated with union representation because such agency-shop provisions constitute compelled speech in contravention of the First Amendment. The decision was significant standing alone, as it directly affects personal assistants in the twenty-five states that are not so-called “right-to-work” states, and likely similarly applies to a vast number of other individuals who can be properly characterized as quasi-public. Perhaps more important is what Harris might mean for the larger world of public-sector unions, however. This Note posits that Harris was a sign that the Court may soon reconsider its previous holding in Abood v. Detroit Board of Education, a 1977 decision that upheld fair-share provisions in the public sector notwithstanding the same First Amendment concerns at issue in Harris. Part II provides an overview of public-sector unions and the role organized labor plays in our country today. Part III discusses the facts in Harris, Justice Alito’s majority opinion, and Justice Kagan and Co.’s dissent. Lastly, Part IV posits that the Court was correct in holding agency-shop provisions violate the First Amendment, but should have affirmatively overruled Abood to hold such provisions unlawful for quasi-public and public-sector employees alike. Nonetheless, Part IV also suggests that Harris’s temporary restraint is in line with the Roberts Court’s practice of “stealth overruling”—that is, chipping away at precedent so as to lay the foundation for a subsequent case to deal the fatal blow. It is clear today that the Note was correct in predicting the Court would provide itself an opportunity to overrule Abood and use Harris as support, as the Court indicated it would do so when it granted cert in Friedrichs v. California Teachers Ass’n. What is less clear, however, is whether the Note correctly predicted the coming demise of fair-share provisions with the Court now almost certainly split 4-4 on the issue and the next Justice holding the swing vote.