Supreme Court Update Lisa Soronen State and Local

Supreme Court Update Lisa Soronen State and Local Legal Center lsoronen@sso. org

Death of Justice Scalia • How does it affect the cities? • Conservatives good • Local control • Qualified immunity • Employment • Religion in public spaces • Conservatives bad • Land use • Tax • Free speech

Death of Justice Scalia • His idiosyncrasies • • • Originalism and textualism are a mixed bag Varied on the Fourth Amendment Liked guns Conservative on social issues Hated the EPA

Who is Merrick Garland? • He is seen as: • • • Moderate, uncontroversial (left of Kennedy; right of Breyer) Anti-gun Pro-prosecution Pro-labor Pro-agency deference (i. e. environmental regulation) Limited record on social issues (death penalty, abortion)

Confirmation: Where are we? • Nowhere • Senate Republicans have refused to give Garland a hearing • Filled out the questionnaire on his own initiative in May • Last count 14 Republican Senators have met with him

What is Likely Next? • Trump presidency • No Garland • Clinton presidency • Will she ask Obama to pull the Garland nomination? • Might depend on whether the Senate becomes a Democrat majority

Trump List of Potential Nominees • • Totally unorthodox Done to illustrate his conservative credentials 11 people; 5 state supreme courts; rest are federal courts of appeals All judges; no Paul Clement All white; 8 are men All conservatives; no “consensus” candidates Most interesting: Don Willett’s tweet Most controversial: William Pryor

Public’s View of the Vacancy • Do people care there are no hearings/Garland isn’t being confirmed? • Public Policy Polling found 65% of those surveyed favor hearings for Garland • Pew poll found 58% of Republican respondents wouldn’t confirm Garland • Public Policy Polling found 57% of Republicans surveyed would trust Trump to select the Justice Scalia’s replacement

Impact of the Vacancy on the Court • Less than you might think • Less than 20% of cases are usually 5 -4 • About 40% of cases are unanimous

Impact of the Vacancy on the Court • More than you might think • Controversial *big* cases are much more likely to be 5 -4 • This term had six *big* case (2 -3 is more common) • Union case— 4 -4 would have gone the other way had Scalia lived • Texas immigration case— 4 -4 • Birth control mandate case—Court worked out compromise? • Court has decided to hear fewer cases since Justice Scalia died

Don’t Forget the Big Picture • Ginsburg— 83 • Kennedy— 79 (same age as Justice Scalia) • Breyer— 77

High Water Mark for a Conservative SCOTUS? • What year did the Supreme Court last contain a majority of members appointed by a Democratic president? • Thomas retirement rumors • What would a 7 -2 Court look like?

Kennedy Court • Coming to an end… • Last two terms have been the most liberal since the 1960 s • Has Kennedy become more liberal? • Justices tend to become more liberal as they age • Legacy • He wants to do things

The Cases • Big cases • Ferguson docket • Bread and butter cases

Friedrichs v. California Teacher Association • 4 -4 • (Was) one of the biggest cases of the term generally and for state and local government • Outcome was practically inevitable • Justice Scalia’s death changed everything

Friedrichs v. California Teacher Association • About half the states are “right to work” • If employees don’t want to join the union they don’t have to and don’t have to pay a dime • Missouri is not a right to work state; hotly debated recently • In “agency fee”/”fair share” states if employee don’t join the union they still have to pay their “fair share” of collective bargaining costs • Friedrichs could have made all states right to work for public sector employees

Friedrichs v. California Teacher Association • Constitutionality of fair share established in 1977 in Abood v. Detroit Board of Education • No free riders are allowed! • Recently, Justice Kennedy and Scalia joined two 5 -4 decisions critical of Abood • Before Justice Scalia died it seemed very likely that the Court would have overturned Abood • Court issued a 4 -4 opinion affirming the lower court’s refusal to overrule Abood • Supreme Court refused to rehear the case

Friedrichs v. California Teacher Association • Public sectors unions can (and do) exist without fair share • Symbolic and practical importance of fair share • Cornerstone of public sector collective bargaining • Guarantees significant funding • Could have been the Citizens United of collective bargaining

Evenwel v. Abbott • Could have been much bigger • Holding: cities (and states) may apportion state legislative districts based on total population

Evenwel v. Abbott • In Reynold v. Sims (1964) the Court established the principle of “one- person, one-vote” requiring state legislative districts to be apportioned equally so that votes would have equal weight • What population is relevant? • Total population or voter-eligible population • Total population includes numerous people who cannot vote—notably noncitizens and children • The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent

Evenwel v. Abbott • Most people considered the law in this area settled • Over the span of decades the Court had denied cert on this repeatedly in cases involving local government

Evenwel v. Abbott • Rationale focused on “constitutional history, this Court’s decisions, and longstanding practice” • Section 2 of the 14 th Amendment explicitly requires that the U. S House of Representatives be apportioned based on total population • In no previous cases alleging a state or local government failed to comply with “one-person, one-vote” had the Court determined if a deviation was permissible based on eligible- or registered-voter data • States and local governments redistricting based on total population is a settled practice

Evenwel v. Abbott • • • Unanimous Written by Justice Ginsburg Tribute to Justice Scalia? Formalistic opinion but did pragmatism carry the day? Court did not decide whether states may redistrict using votereligible population

Fisher v. University of Texas at Austin • 4 -3 win for affirmative action (Justice Kagan didn’t participate) • Ironically this probably would have been a 4 -4 case had Justice Scalia lived • What did the Court say? • What is the significance of the case?

Fisher v. University of Texas at Austin • Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class • Other students are admitted based on a combination of their grades and test scores and “personal achievement index” • Race is considered as one factor in one of the two components of an applicant’s “personal achievement index”

Fisher v. University of Texas at Austin • Strict scrutiny applies to the use of race in college admissions • Diversity is a compelling interest in the education context • In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not have deferred to UT Austin’s argument that its use of race is narrowly tailored • Fisher essentially argued that the Top Ten Percent Plan created enough diversity

Fisher v. University of Texas at Austin • Justice Kennedy rejects Fisher’s four arguments that UT Austin’s admissions policy isn’t narrowly tailored • Critical mass isn’t a number • Critical mass wasn’t achieved when race wasn’t a factor (between 1996 and 2002, when race wasn’t a factor in admissions, minority enrollment stagnated) • Race had more than a minimal impact on minority enrollment (between 2003 and 2007, when race was considered, Hispanic and African-American enrollment increased 54 percent and 94 percent respectively) • UT Austin tried numerous race-neutral means of achieving more diversity and they failed

Fisher v. University of Texas at Austin • Big/symbolic significance of the case • First win for affirmative action in education since Grutter v. Bollinger (2003) • Remember the 25 year predication? • Written by Justice Kennedy • Did not join the majority in Grutter • Embraces Grutter enthusiastically • Apology, and lecture, and a warning • Is this what a more liberal Supreme Court looks like? • This is the John the Baptist case—Harvard/UNC case is the Jesus case

Mc. Donnell v. United States • • Not the biggest of the big Definition of bribery under federal law Unanimous win for Mc. Donnell (sort of) Setting up meetings, calling other public officials, and hosting events do not alone qualify as “official acts”

Mc. Donnell v. United States • While in office Mc. Donnell accepted more than $175, 000 in loans, gifts, and other benefits from Jonnie Williams • Williams wanted a Virginia state university to test a dietary supplement, Anatabloc, his company, Star Scientific, had developed • Federal bribery statutes make it a crime for public officials to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act”

Mc. Donnell v. United States • The federal government claimed Mc. Donnell committed at least five official acts • Williams argued that these acts which didn’t “direct[] a particular resolution of a specific governmental decision” or pressure another government official to act, in and of themselves, aren’t “official acts” • An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit”

Mc. Donnell v. United States • Merely setting up a meeting, hosting an event, or calling another official does not qualify as a “decision or action” on any of these questions or matters: • “Simply expressing support for the research study at a meeting, event, or call —or sending a subordinate to such a meeting, event, or call—similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act. ’ Otherwise, if every action somehow related to the research study were an ‘official act, ’ the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless. ”

Mc. Donnell v. United States • Mc. Donnell hasn’t “won” yet • The lower court will decide whether charges against Mc. Donnell should be dismissed based on its new definition of “official acts” or whether Mc. Donnell should receive a new trial

Mc. Donnell v. United States • How might state legislatures respond? • Why wasn’t this case tried based on state bribery/corruption/gifts laws? • Tighten up state bribery/corruption/gifts statutes? • Is state law tougher than “intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act’” • Big picture thoughts on this case • Court was thinking about campaign contributions as the quid • Too much prosecutorial discretion under old federal statutes

Ferguson Cases

Mullenix v. Luna • You can’t make this stuff up • Leija led officers on an 18 -minute chase at speeds between 85 and 110 miles an hour • Called police twice saying he had a gun and would shoot police officers if they did not abandon their pursuit • While officers set up spike strips under an overpass, Officer Mullenix asked his supervisor via dispatch if he thought shooting at Leija’s car to disable it was “worth doing” • His supervisor told Mullenix to wait to see if the spike strips worked (Court assumed Mullenix heard his supervisor) • Mullenix learned an officer was in harm’s way from Leija beneath the overpass • Mullenix shot at Leija’s vehicle six times killing him but not disabling his vehicle

Mullenix v. Luna • Supreme Court sits on the case for months • Issues a per curium (unauthored) opinion in favor of the officer

Mullenix v. Luna • The Fifth Circuit denied qualified immunity • Police officers may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officers or others • SCOTUS: too general of an inquiry • “In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances ‘beyond debate. ’”

Mullenix v. Luna • Sotomayor dissent • No training • No supervisor approval • Spike strips seconds later

Mullenix v. Luna • Legally interesting • Qualified immunity question should be narrow and fact-driven (nothing new here) • Culturally interesting • Made the news • Post-Ferguson SCOTUS isn’t loosening up qualified immunity? • Does this case represent the outer limit on qualified immunity? • IMLA didn’t file an amicus brief • Officer ignored his supervisor

Utah v. Streiff • A police officer stopped Edward Streiff after he left a suspected drug house • The officer discovered Streiff had an outstanding warrant, searched him (legally), and discovered he was carrying illegal drugs • The Supreme Court held 5 -3 that even though the initial stop was illegal, the drug evidence could be admissible against Streiff in a trial

Exclusionary Rule • When police gain evidence through unconstitutional searches that evidence is generally inadmissible in trial per the exclusionary rule • The attenuation doctrine is an exception to the exclusionary rule • Per that doctrine “[e]vidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance”

Utah v. Streiff • Issue: even though the stop was illegal could evidence gained during the stop be admitted because something “attenuating” happened in the middle of the stop—(discovering the warrant) • Court said yes • Warrant was an intervening factor in this case because it was valid, it predated the stop, and it was entirely unconnected to the stop

Utah v. Streiff • Justice Sotomayor's dissent • Police will (and already are) stop people for the sole purpose of running a warrant check and get away with it as long as they can, after the fact, point to a (minor, unrelated, or ambiguous) infraction • “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. ” • In Ferguson, Missouri (16, 000 warrants out of 21, 000 people)

Utah v. Streiff • Justice Thomas responds • No evidence of “dragnets” searches • If there was attenuation doctrine might not apply • And police could be sued civilly

Bread and Butter: Three “H” Cases

Heffernan v. City of Paterson, New Jersey • One case with a city as a named party • Issue: May a government employer’s mistaken belief that an employee exercised his or her First Amendment rights be the basis for a First Amendment retaliation lawsuit? • Supreme Court yes: 6 -2 47

Heffernan v. City of Paterson, New Jersey • You can’t make this stuff up: • • • Police officer works in police chief’s inner circle Police officer picks up campaign sign for mayor’s opponent Gets caught talking to opponent’s campaign manager Gets removed from inner circle Sign not for himself…for bedridden mother!

Heffernan v. City of Paterson, New Jersey • First Amendment generally protects public employees who support political candidates • Officer Heffernan’s position • I wasn’t supporting a political candidate; I was merely wrongly perceived as doing so

Heffernan v. City of Paterson, New Jersey • The question in this case is whether the First Amendment right focuses upon the employee’s motive or the supervisor’s motive • Court: supervisor’s motive • Supervisor’s motive here was to violate the First Amendment

Heffernan v. City of Paterson, New Jersey • Waters v. Churchill (1994) • The employer mistakenly believed the employee engaged in personal gossip rather than protected speech on a matter of public concern • The Court upheld the employee’s dismissal focusing on the employer’s motive • “In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? ”

Heffernan v. City of Paterson, New Jersey • Thomas and Alito (dissent) • Public employees have no remedy against public employers who attempt but fail to violate employees’ constitutional rights • “Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional. ”

Heffernan v. City of Paterson, New Jersey • View of Paterson attorney before oral argument • Doctrinally I win • I could win against nine computers • Bad facts make bad law? • This issue could never have come to the Court with good facts • Case is narrow • Don’t let this case keep you up at night

Franchise Tax Board of California v. Hyatt • If a city gets sued out-of-state that state court must offer the city the same immunities the state court offers to its own state and local governments • 6 -2 decision • Full Faith and Credit Clause case: states must respect the laws of other states • Best illustrated by the facts of the case

Franchise Tax Board of California v. Hyatt • Gilbert Hyatt said that he moved to Nevada in September 1991 • California’s Franchise Tax Board (CFTB) claimed that Hyatt moved to Nevada in April 1992 and owed California more than $10 million in taxes, penalties, and interest • Hyatt sued CFTB in Nevada state court alleging invasion of privacy, fraud, and intentional infliction of emotional distress, among other claims, related to what he described as abusive audit and investigation practices

Franchise Tax Board of California v. Hyatt • Had this case been heard in California state court CFTB would have been totally immune from liability under California law • In 2003 in Franchise Tax Board of California v. Hyatt the Supreme Court held that the Full Faith and Credit Clause does not require Nevada to offer CFTB the full immunity that California law provides

Franchise Tax Board of California v. Hyatt • A Nevada jury ultimately awarded Hyatt nearly $500 million in damages and fees • The Nevada Supreme Court refused to apply Nevada’s $50, 000 statutory cap, which applies to Nevada state and local governments, to damages related to Hyatt’s fraud claim • CFTB claimed this refusal violates the Full Faith and Credit Clause

Franchise Tax Board of California v. Hyatt • Supreme Court agreed: • Nevada’s rule allowing damages awards of over $50, 000 against foreign states and local governments is “not only ‘opposed’ to California law [which provides total immunity], it is also inconsistent with the general principles of Nevada immunity law” [which grants the state immunity over $50, 000] • Remember Plumhoff v. Rickard?

US Army Corp of Engineers v. Hawkes • Approved jurisdictional determination that property contains “waters of the United States” may be immediately reviewed in court • Unanimous decision • SLLC filed an amicus brief

US Army Corp of Engineers v. Hawkes • Per the Clean Water Act, “waters of the United States” (WOTUS) are federally regulated • Property owners may seek an approved jurisdictional determination (JD) from the US Army Corp of Engineers definitively stating whether such waters are present or absent on a particular parcel of land • If WOTUS exist, property owners must seek a permit to develop the land • State and local governments sometimes own land that contain WOTUS or are working with developers who do

US Army Corp of Engineers v. Hawkes • Three companies wanted to mine peat from wetland property in Minnesota • The Corp issued an approved JD that the property contained WOTUS because its wetlands had a “significant nexus” to a river located about 120 miles away • The companies wanted a court to rule on whether the JD was correct; not to first seek a permit

US Army Corp of Engineers v. Hawkes • Relevant law • Per the Administrative Procedures Act judicial review may be sought only from final agency actions • Bennett v. Spear (1997) agency action is final when it: • Marks the consummation of the agency’s decision making process • When legal consequences flow from the action

US Army Corp of Engineers v. Hawkes • Approved JDs give rise to “direct and appreciable legal consequences” because the Corp is bound by them for five years • “Longstanding memorandum of agreement” between the Corp and the Environmental Protection Agency (EPA) binds the EPA • So, per an approved JD, the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, practically speaking, grant or deny a property owner a five-year safe harbor from such proceedings

Next Term Cases of Interest to Cities • Murr v. Wisconsin • Are merger provisions unconstitutional takings? • Manuel v. City of Joliet • Are malicious prosecution claims under the Fourth Amendment possible? • BOA and Wells Fargo v. Miami • Do cities have standing to sue banks under the Fair Housing Act over loses to the city cause by discriminatory mortgages

SLLC Supreme Court Webinars • • FREE Register of the SLLC website—look on the “events” page Review: July 19; 1 PM Eastern time One Year After Reed: September 14; 1 PM Eastern

Keeping in Touch with the SLLC • Website: http: //www. statelocallc. org/ • Twitter: www. twitter. com/sllcscotus • Email (lsoronen@sso. org) or call me (202) 434 -4845