A certiorari petition to the U.S. Supreme Court challenges the 6th Circuit's decision to uphold occupational licensees' 5th Amendment rights in disciplinary proceedings

An interesting petition for a writ of certiorari has been filed and is pending before the U.S. Supreme Court about occupational licensing.

The appeal is by the Michigan Gaming Commission and it is challenging the last year's decision of the U.S. Court of Appeals reversing the district court's grant of summary judgment to the Gaming Commission, the text of the case is available here.

The two questions before the court are:

2) are occupational licensees entitled to 5th Amendment protection in disciplinary proceedings?  The U.S. Court of Appeals for the 6th Circuit said they are:

The case is out of the state of Michigan.

What is not presented in the "questions presented" (no pun intended) of the petition for a writ of certiorari is that the 6th Circuit denied even qualified immunity (as a matter of law) to the Licensing (Gaming) Board, and remanded the case back for trial on the issue of immunity.

A strong brief in opposition of the petition has been filed by the occupational licensees - race drivers who lost their licenses (and jobs) because of their refusal to make self-incriminating statements in licensing disciplinary proceedings, which the 6th Circuit considered an unconstitutional action by the licensing board.



An amicus curiae brief from California Sheriffs' Association asks the U.S. Supreme Court to reverse the 6th Circuit's decision:

 So, what are the "disastrous consequences" to the interests of police as to 5th Amendment protection against compelled self-incrimination "during investigations"?

The position of the Sheriffs' Associations is that:

 
Or, in other words, the Sheriffs' Association want to be able to continue to compel self-incrimination in interrogations under SOME grounds - as long as they do not CRIMINALLY prosecute the individual from whom the self-incrimination was exacted by compulsion.

Yet, the Sheriffs' Association's "interest" in compelling testimony of PUBLIC EMPLOYEES (not of private occupational licensees) in administrative proceedings has nothing to do with occupational licensing, and, if the U.S. Supreme Court rejects the writ of certiorari or affirms the decision of the 6th Circuit, that will not create the problems the Sheriffs' Association are claiming will be created for them 

As much as I would like public employees to be disciplined for misconduct (that was, as I understand, the Sheriffs' Association's point), I would prefer it to be done following the U.S. Constitution, and without the use of compelled self-incrimination.

Because - if one of us can be compelled to incriminate oneself, and thus lose his or her job, it is applicable to anyone.

And that's just wrong - as the 6th Circuit, fortunately, has recognized in reversing the grant of summary judgment to the Michigan Gaming Board on 5th Amendment grounds.

It is an interesting case, I will cover how it will develop - and will run a separate blog on a separate issue regarding occupational licensing that the case raises.

Stay tuned.