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Oral Args. in Telecommuting, Self-Representation En Banc Cases

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By William Peacock, Esq. on December 05, 2014 10:48 AM

Earlier this week, the Sixth Circuit heard oral arguments in two en banc cases that we've been covering: the "irritable bowel" telecommuting case and a habeas case where a man claims that he was denied his right to self-representation.

The former case asks whether summary judgment in favor of Ford Motor Co. was proper when an employee requested to telecommute as a reasonable accommodation of her disability -- irritable bowel syndrome (IBS). The latter case, Hill v. Curtin, is about a man who asked to represent himself on the first day of trial, before a jury was empaneled. His request was denied as untimely by the trial court and by the state appellate courts, but the district court granted habeas relief.

Was Summary Judgment a Mistake?

Many employers are worried about the implications of EEOC v. Ford, and about a court overriding an employer's determination that physical presence was necessary to an employee's job description. But as my fellow blogger Mark Wilson pointed out in September, we're still talking about summary judgment: The issue isn't whether telecommuting was proper -- it's whether it was such an obviously reasonable accommodation that there shouldn't even have been a trial in the first place.

During oral arguments, that seems to have been the judges' focus as well. According to Squire Patton Boggs' Sixth Circuit appellate blog, the judges peppered the litigants with factual questions that seemed to focus on the summary judgment issue.

Was Citing the Sixth Circuit a Mistake?

Faretta v. California (1975) was the landmark case where the U.S. Supreme Court held that when a defendant voices a desire to exercise his right to self-represent, the court should decide whether that decision is knowing, intelligent, and voluntary.

The Michigan Supreme Court's decision upholding Thomas Hill's conviction held that his request was not timely, but did not address Faretta's mandate, nor did the trial court undertake such an evaluation. As such, it was a decision that was contrary to federal law as determined by the Supreme Court -- the standard for habeas relief set forth by the Antiterrorism and Effective Death Penalty Act.

However, as SPB points out, while the unpublished panel opinion mentions Faretta 11 times, it also cites circuit precedent to address the issue of timeliness of a request to self-represent (an issue Faretta did not directly or conclusively address). In other words, this might come down to whether a court can consider non-SCOTUS precedent as an extension of the "law as determined by the Supreme Court" standard.

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