State & Local News Vol. 21, No. 1, Fall 1997 Supreme Court Watch By Beate Bloch Beate Bloch is a legal writing consultant in Washington, D.C. The end of the October 1996 Term produced several decisions of major importance to state and local governments. This issue reports cases involving state sovereignty, the Eleventh Amendment, municipal liability, voting rights, and the "right to die." State Sovereignty On June 27, 1997, the last day of the Term, the Court, voting 5 to 4 in Printz v. United States, 65 U.S.L.W. 4731, invalidated interim provisions of the Brady Handgun Prevention Act of 1993 that required state and local "chief law enforcement officers" (CLEOs) to conduct background checks on prospective purchasers of handguns. Justice Scalia, writing for the Court, held that "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs." The Court found it unnecessary to decide the validity of provisions requiring dealers to notify CLEOs of a prospective sale and to wait five days before completing it. Justice O'Connor, concurring, pointed out that these were only interim provisions and that they could continue to be implemented on a voluntary basis. Justice Thomas wrote a separate concurring opinion, citing the Tenth Amendment. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, because Congress "may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens" in the exercise of its delegated powers. Article I, 8, of the Constitution gives Congress the power to regulate interstate commerce, including commerce in handguns. Justices Souter and Breyer (joined by Justice Stevens) wrote separate dissenting opinions. Eleventh Amendment In Idaho v. Coeur d'Alene Tribe of Idaho, 65 U.S.L.W. 4540 (decided June 23), another 5 to 4 decision, the Court directed dismissal of a federal court suit against the state and some of its officers brought by the tribe to establish its claim to ownership of submerged lands and the bed of Lake Coeur d'Alene. Justice Kennedy's opinion for the Court held the case did not fall within the doctrine of Ex Parte Young, 209 U.S. 123 (1908), which permits actions against individual state officers who act in violation of federal law. Justice O'Connor, joined by Justices Scalia and Thomas in a concurring opinion, thought that the majority opinion unduly narrowed the scope of Young but agreed that it should not be extended to reach this case. Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented on the ground that Ex Parte Young authorized federal courts to enjoin state officers from actions that violate federal law. Richardson v. McKnight, 65 U.S.L.W. 4579 (decided June 23), was a constitutional tort action under 42 U.S.C. 1983. Respondent, a prisoner at a Tennessee correctional center whose management had been privatized, sued for injuries inflicted by prison guards. Their motion to dismiss was denied because private employees are not entitled to qualified immunity. The Court affirmed 5 to 4. Justice Breyer's opinion for the majority pointed out that the defendants would not necessarily be liable under 1983. They may not have acted "under color of state law" and they might have a "good faith" defense. Justice Scalia was joined by the Chief Justice and Justices Kennedy and Thomas in dissent, on the ground that 1983 immunity should be determined on the basis of the public function being performed, whether performed by public or private employees. Municipal Liability McMillan v. Monroe County, Alabama, 65 U.S.L.W. 4403 (decided June 2), was an action under 42 U.S.C. 1983 for damages for the unconstitutional actions of the sheriff of the county. Petitioner's conviction of murder had eventually (after six years) been reversed because the state had suppressed exculpatory evidence. The Court held, 5 to 4, that the sheriff was a policymaker for the state, not the county. Chief Justice Rehnquist's opinion for the Court ruled that the question was to be determined by state law, which made the sheriff a state official. Under the Alabama Constitution, the executive department includes "a sheriff for each county." The Constitution made neglect by sheriffs that permitted mob abduction and lynching of prisoners an impeachable offense, triable in the state supreme court. The Alabama Supreme Court has held that actions against the sheriffs for official acts are actions against the state, not the county. Counties have no law enforcement authority; the sheriff reports to the district attorney for the county a state official. Justice Ginsburg was joined in dissent by Justices Stevens, Souter, and Breyer. In Gilbert v. Homar, 65 U.S.L.W. 4442 (decided June 9), respondent was employed as a police officer at East Stroudsburg University (ESU). On August 26, 1991, he was arrested by the Pennsylvania State Police in a drug raid and charged with a drug felony. He was suspended without pay, effective immediately. The criminal charges were dismissed on September 1, but the ESU investigation continued. On September 23, respondent was demoted to grounds keeper, but was awarded back pay for the period of his suspension. Respondent filed suit under 42 U.S.C. 1983, contending that his due process rights were violated when he was suspended without notice and an opportunity to be heard. The Supreme Court reversed, unanimously, in an opinion by Justice Scalia. The case was remanded for a determination of whether respondent's post-suspension hearing was sufficiently prompt. Voting Rights Reno v. Bossier Parish School Board, 65 U.S.L.W. 4308 (decided May 12), involved the requirements of section 5 of the Voting Rights Act of 1965 (VRA), for pre-clearance of any change to a voting "qualification, prerequisite, standard, practice, or procedure." After the 1990 census, the twelve-member board decided to redraw its districts to equalize their population distirubtion. The board considered two plans: (1) the "Jury plan," which had been adopted by the Police Jury, the primary governing body of the parish, and had been pre-cleared by the Attorney General although it did not include any black majority district; (2) a plan proposed by the NAACP, with two black-majority districts. The board adopted the Jury plan, which the Attorney General refused to pre-clear. She found the Jury plan in violation of section 2 of the VRA, because it limited the opportunity for minority voters to elect candidates of their choice. The board then sought and obtained pre-clearance from the District Court for the District of Columbia. The Supreme Court affirmed, holding that a violation of section 2 was not by itself sufficient to justify denying pre-clearance under section 5. Justice O'Connor's opinion for the Court explained that section 5 prohibits only retrogression in the position of racial minorities, measured against the existing practice. Section 2, which was designed to eliminate practices that minimize or cancel voting strength and political effectiveness of minorities, i.e., vote dilution, has no intent component. The case was remanded, however, because a dilutive impact may be relevant to the inquiry into retrogressive intent. Justice Breyer was joined by Justice Ginsburg in an opinion concurring in part. Justice Stevens, joined by Justice Souter dissented in part, on the ground that the Attorney General should not be asked to approve a voting practice clearly prohibited by section 2. In Abrams v. Johnson, 65 U.S.L.W. 4478 (decided June 19), the Court revisited Georgia's redistricting plan. Two years ago, in Miller v. Johnson, 515 U.S. (1995), the Court had found that race had improperly been the predominant factor in drawing the lines of the 11th Congressional District. (See Supreme Court Watch, 19 St. & Loc. L. News No. 1, at 9 (1995)). After remand, the Second District was also challenged and found improper. The state legislature had deadlocked on a new plan and the district court, therefore, drew a plan with one black-majority district, which was used in the 1996 election. The United States joined minority voters who challenged the plan, alleging that the interests of the black population had not been adequately taken into account. The Supreme Court, 5 to 4, affirmed the plan. Justice Kennedy, for the Court, held that the court-devised plan did not violate section 2 of the Voting Rights Act. The district court had found that the black population was not sufficiently compact for a second black-majority district. The court also found evidence of crossover voting by whites, and a lack of evidence of racial polarization. Although section 5 of the Voting Rights Act does not apply to a court-devised plan, the court should follow its standards and did so. There was no retrogression when the plan was measured by the 1982 plan, which had previously been in effect for ten years. The plan involved only slight deviations for the one-man, one-vote principle. Justice Breyer was joined in dissent by Justices Stevens, Souter, and Ginsburg, on the ground that Georgia state policy favored the creation of two black-majority districts. Lawyer v. Department of Justice, 65 U.S.L.W. 4629 (decided June 25), posed an Equal Protection Clause challenge to Florida's Legislative District 21. The state Senate and House of Representatives, the senator from District 21, and a group of black and Hispanic voters intervened. All the parties, except the appellant, agreed to a settlement that was approved by the district court. The Supreme Court affirmed, 5 to 4, in an opinion by Justice Souter. Justice Scalia, joined by Justices O'Connor, Kennedy, and Thomas, dissented, because the district court redrew District 21 without first determining that District 21 was unconstitutional and then giving the state an opportunity to do its own redrawing. The Right to Die In Washington v. Glucksberg, 65 U.S.L.W. 4669 (decided June 26), the Court, without dissent, upheld the state's ban on "promoting a suicide" by causing or aiding another to commit suicide. Chief Justice Rehnquist, for the Court, ruled, that "the asserted right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause." In Vacco v. Quill, 65 U.S.L.W. 4695, decided the same day, the Court, in another opinion by the Chief Justice, rejected a challenge under the Equal Protection Clause to a similar New York law. In each case, separate concurring opinions were filed by Justices O'Connor, Stevens, Souter, Ginsburg, and Breyer.