SCOTUS Preview—October 2023 Term

The Supreme Court of the United States (SCOTUS) is the ultimate appellate jurisdiction for all federal court cases, as well as state court cases that involve questions of Constitutional or federal law.

The SCOTUS begins hearing cases in October of each year and is under no obligation to issue an opinion by a particular date. However, the SCOTUS typically issues decisions before the term is concluded, customarily in June or July of the following year.

This article provides a preview of selected cases before the SCOTUS in the October 2023 term that concern issues recently before the Kansas Legislature.

Americans With Disabilities Act Litigation

Acheson Hotels v. Laufer involves the issue of standing required to sue under the Americans with Disabilities Act (ADA), specifically regarding the standing of a “tester” plaintiff to sue for a civil rights violation if that plaintiff had no intention of visiting the establishment.

Relevant Legislation

The 2023 Kansas Legislature passed Senate Sub. for HB 2016, enacting the Act Against Abusive Access Website Litigation to create a civil action for determining whether litigation that alleges any website access violation under the ADA or similar law constitutes abusive litigation.

Civil Asset Forfeiture

Culley v. Marshall involves the issues of whether the Due Process clause of the U.S. Constitution requires a post-seizure probable-cause hearing take place before a forfeiture hearing, and if so, which speedy trial test should be employed.

Kansas Statutes and Pending Legislation

The Kansas Standard Asset Seizure and Forfeiture Act (SASFA) (KSA 2022 Supp. 60-4101, et seq.) was enacted in 1994. During the 2023 Legislative Session, a hearing was held on HB 2380, which would amend several provisions of SASFA. HB 2380 is currently in the House Committee on Corrections and Juvenile Justice.

The Kansas Judicial Council Advisory Committee on Civil Asset Forfeiture was convened in summer 2023 to study and make recommendations to the Legislature regarding HB 2380. The Legislative Coordinating Council appointed a 2023 Special Committee on Civil Asset Forfeiture that met to hear the Advisory Committee’s report in December 2023. The Special Committee heard additional testimony and made recommendations concerning the burden of proof and topics for further study. Newly published and archived Judicial Council reports are available on its Studies and Reports webpage.

Social Media

Lindke v. Freed and O’Connor-Ratcliff v. Garnier both involve questions concerning social media activity of public officials, specifically the blocking of constituents from particular profiles and whether the use of social media by those officials constitutes state action for First Amendment purposes.

Murthy v. Missouri involves the issue of whether government agencies may communicate with social media companies concerning content moderation on those platforms.

Relevant Legislation

SB 1 would prohibit internet social media companies from censoring speech made on their platforms. SB 50 would similarly create a crime concerning instances of social media websites entering into contracts with Kansans that allow the site to censor certain speech. SB 1 is in the Senate Committee on Federal and State Affairs; SB 50 was passed by the Senate Committee on Federal and State Affairs and is currently in the Senate Committee on Judiciary.

Second Amendment—Domestic Violence Restraining Orders

United States v. Rahimi involves the question of whether federal law that prohibits possession of firearms by persons subject to a domestic violence restraining order violate the second amendment of the U.S. Constitution.

Relevant Statutes

Kansas firearms restrictions generally follow the federal possession laws found in 18 USC 922. The specific provision at issue in Rahimi regarding domestic violence restraining orders is cited in two Kansas statutes: KSA 2022 Supp. 75-7c04 [disqualifications for receiving or renewing a concealed carry license] and KSA 75-7e06 [disqualification from receiving or renewing a bail enforcement agent license].

KSA 2022 Supp. 21-6301 does not cite the federal statute, but does provide criminal penalties for possession of a firearm while a person is under a similar court order or has been convicted of a domestic violence misdemeanor offense within the preceding five years.