State & Local News Vol. 20, No. 3, Spring 1997 SUPREME COURT WATCH By Beate Bloch As usual, the Court's decision making for the October 1996 Term got off to a slow start. Of interest to state and local governments are the following, in the areas of voting rights, search and seizure, due process, and preemption. Voting Rights In Lopez v. Monterey County, Cal., 65 U.S.L.W. 4003 (decided Nov. 2, 1996), the Court held that a three-judge district court could not authorize the county to conduct judicial elections under a plan that had not received pre-clearance pursuant to section 5 of the Voting Rights Act. As of November 1, 1968, the county had nine judicial districts, with the judges elected by the voters of each district: two municipal court districts, with populations over 40,000; and seven justice court districts, which were not courts of record. Between 1972 and 1983, the county adopted six separate consolidation ordinances, which resulted in a single countywide municipal court with nine judges elected at large for six-year terms. In 1993, five Hispanic voters sued the county for its failure to obtain pre-clearance of the consolidations ordinances. A three-judge court ruled that the ordinances were subject to section 5 and therefore unenforceable without federal pre-clearance. The parties attempted to work together, but couldn't devise a plan that did not violate either state or federal law. The court enjoined the scheduled 1994 election. The court then adopted a plan inconsistent with state law previously proposed by the parties, for four election districts; three, with Hispanic majorities, would elect one judge each, and the fourth an additional seven, to serve eighteen months, until June 1997. The Attorney General pre-cleared the plan on March 6, 1995, and seven judges were elected in a special election held on June 6, 1995. After the Supreme Court's decision in Miller v. Johnson, 515 U.S. ___ (1995),1 the district court reconsidered the plan and ordered instead a countywide judicial election of ten judges for six-year terms, to be held in March 1996, with no future elections pending pre-clearance. The plaintiffs appealed, because this was essentially the very plan they had challenged for failure to obtain pre-clearance. The Supreme Court reversed, unanimously. Justice O'Connor, writing for the Court, noted that the county did not submit its changes for pre-clearance when they were adopted, in disregard of Congress' intent "'to forestall the danger that local decisions to modify voting practices will impair minority access to the electoral process.' McDaniel,2 452 U.S. at 149." Congress gave exclusive authority to the Attorney General and the District Court for the District of Columbia to determine the discriminatory effect or purpose of an election change. This congressional choice in favor of specialized review necessarily constrains the role of the three-judge district court. . . . The three-judge district court may determine only whether 5 covers a contested change, whether 5's approval requirements were satisfied, and if the requirements were not satisfied, what temporary remedy, if any, is appropriate. In this case, nearly five years had elapsed since the suit was filed. The county had commenced a declaratory judgment action in the District Court for the District of Columbia, but had dismissed it before any findings were made; and had never submitted the consolidation ordinances to the Attorney General. The three-judge district court had never enforced its order to the county to obtain pre-clearance. The Court remanded the case, leaving for decision by the district court the defenses interposed by the State of California, which had intervened: (1) that changes in California law changed the county's judicial election scheme to a state plan; (2) that the suit was barred by laches; (3) that it was constitutionally improper to designate the county as a jurisdiction covered under section 5; and (d) that the consolidation ordinances did not alter a voting "standard, practice, or procedure" subject to section 5. Search and Seizure In Ohio v. Robinette, 65 U.S.L.W. 4013 (decided Nov. 18, 1996), the Court declined to adopt a strict standard for a consensual search. The defendant had been stopped for speeding. After running a computer check, which showed no previous violations, Deputy Sheriff Newhouse asked Robinette to step out of his car, turned a video camera on him, issued a verbal warning, and returned his driver's license. Newhouse then said: "One question before you get gone: [A]re you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?" When Robinette answered no, Newhouse asked if he could search the car, and Robinette consented. The search disclosed a small amount of marijuana and a methylenedioxymethamphetamine (MDMA) pill in a film container. Robinette was arrested and charged with knowing possession of MDMA, a controlled substance. When his motion to suppress the evidence was denied, he pleaded "no contest" and was found guilty. The Ohio Court of Appeals reversed the conviction, on the ground that the search resulted from unlawful detention. The Ohio Supreme Court affirmed, holding that the federal and Ohio Constitutions "require[s] that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation." The Supreme Court reversed, 8 to 1, and remanded the case. Chief Justice Rehnquist's opinion for the Court first ruled that the Ohio courts apparently had relied on the federal Constitution. As a matter of constitutional law, it was "unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed valid." Justice Ginsburg wrote a concurring opinion, because she believed the Ohio court intended its rule for its own state courts, and not as a mandate for the entire nation. Justice Stevens dissented. Due Process In M.L.B. v. S.L.J., 65 U.S.L.W. 4035 (decided Dec. 16, 1996), M.L.B.'s parental rights to her two minor children had been terminated by an order of the Mississippi Chancery Court. The Supreme Court of Mississippi dismissed her attempted appeal, because she did not have $2,352.36 to pay the record preparation fees. The Supreme Court reversed, 6 to 3, in an opinion by Justice Ginsburg, which stressed the vital nature of the family issue involved in upholding M.L.B.'s right to appeal. The Chief Justice and Justices Thomas and Scalia dissented. Preemption Atherton v. F.D.I.C., 65 U.S.L.W. 4062 (decided Jan. 14, 1997), was a suit filed by the Resolution Trust Corporation against the officers and directors of the Federal City Savings Bank, alleging that they violated the "legal standard of care they owed that federally chartered, federally insured institution." The question before the Court was the proper standard of care to be applied. The Justices ruled, without dissent, that the state standard should apply, so long as it was stricter than the federal statute, which sets a "gross negligence" floor for that standard. Justice Breyer wrote the Court's opinion. Justice O'Connor, joined by Justices Scalia and Thomas, concurred, except for the majority's reliance on the legislative history of the federal law.