State & Local News Vol. 21, No. 4, Summer 1998 Supreme Court Watch Beate Bloch is a legal writing consultant in Washington, D.C. By Beate Bloch In the first three months of 1998, the Court upheld the absolute immunity from suit of local, as well as state or regional, legislators. In two employment discrimination cases, the Court upheld an age discrimination claim, whose release did not meet ADEA requirements, and a same-sex sexual harassment claim under the Civil Rights Act. In two criminal cases, the Court clarified the bounds of a "no-knock" entry and search; and upheld the per se exclusion of polygraph tests as evidence. Legislative Immunity In Bogan v. Scott-Harris, 66 U.S.L.W. 4163 (decided Mar. 3, 1998), Janet Scott-Harris, the administrator of the Department of Health and Human Services (DHHS) for Fall River, Massachusetts, received a complaint that an employee, Dorothy Biltcliffe, had made racial and ethnic slurs about her colleagues, and prepared termination charges. Biltcliffe used her political connections, including Marilyn Roderick, vice president of the Fall River City Council. After a hearing, the Council entered into a settlement with Biltcliffe, who was suspended without pay for sixty days, such time period being subsequently reduced by Daniel Bogan, the mayor of Fall River. While the charges were pending, Mayor Bogan prepared a budget proposal for fiscal 1992—freezing the salaries of all employees and eliminating 135 positions, including DHHS, of which Scott-Harris was the sole employee. The City Council Ordinance Committee, chaired by Roderick, approved the ordinance eliminating the DHHS, which was then adopted by the City Council and signed into law by Mayor Bogan. Scott-Harris filed suit under 42 U.S.C. § 1983 against the city, Bogan, Roderick, and other city officials. The jury held the city, Bogan, and Roderick liable on a claim of retaliation for the exercise of her First Amendment rights by filing the complaint against Biltcliffe. The First Circuit Court of Appeals affirmed the judgments against Roderick and Bogan, concluding that the challenged conduct was not "legislative" but administrative, because it was based on facts relating to a particular individual. The Supreme Court reversed, unanimously. Justice Thomas, writing for the Court, held that local legislators, as well as state and regional legislators, "are entitled to absolute immunity from liability under § 1983 for their legislative activities." The opinion then explained: "[w]hether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Officials outside the legislative branch, like Bogan, are entitled to legislative immunity when they perform legislative functions. In this case, Bogan's actions were "integral steps in the legislative process." Employment Discrimination Oubre v. Entergy Operations, 66 U.S.L.W. 4118 (decided Jan. 26, 1998), presented an age discrimination claim. Dolores Oubre had signed a release of all claims against her employer, in exchange for severance pay. The release did not comply with the Older Workers Benefit Protection Act (OWBPA), a 1990 amendment to the Age Discrimination in Employment Act (ADEA), which contains specific requirements for releases of ADEA claims. Oubre's release was deficient in three respects: (1) she was not given enough time to consider the offer; (2) the employer should have allowed her seven days to change her mind; and (3) the release contained no specific reference to claims under the ADEA. Her suit, however, had been dismissed because she had not tendered the return of her severance pay. Nonresidents must pay tax on their net income from New York real property or tangible personal property, and net income from employment or business, trade, or professional operations in New York. The tax is determined by taking into consideration the relationship between New York source income and the taxpayer's total income as reported to the federal government. Before 1987, nonresidents could take a pro rata deduction for alimony, under a decision of the New York Court of Appeals. The Tax Reform and Reduction Act of 1987 overruled that decision. The Supreme Court reversed. Justice Kennedy's opinion for the Court ruled that: "the release cannot bar the ADEA claim because it does not conform to the statute," and the employee's mere retention of monies was not "a ratification equivalent to a valid release of her ADEA claims," because it "did not comply with the OWBPA any more than the original release did." The employer may have a claim for restitution, recoupment, or setoff—but the claim was not barred. Justice Breyer was joined by Justice O'Connor in a concurring opinion. Dissenting opinions were filed by Justices Scalia (joined by Justice Thomas) and Thomas (joined by the Chief Justice) because there had been no "tender back" of the payments received. In Oncale v. Sundowner Offshore Services, 66 U.S.L.W. 4172 (decided Mar. 4, 1998), the Court held unanimously that Title VII of the Civil Rights Act of 1964 authorizes the maintenance of a suit for same-sex harassment on the job. Justice Scalia's opinion for the Court ruled that "Title VII's prohibition of discrimination 'because of . . . sex' protects men as well as women," and that there is "no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII." The Court's holding that prohibited sex discrimination includes sexual harassment "must extend to sexual harassment of any kind that meets the statutory requirement." The Court anticipated no great difficulty in "distinguish[ing] between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Justice Thomas wrote a brief concurring opinion. Fourth Amendment In United States v. Ramirez, 66 U.S.L.W. 4169 (decided Mar. 4, 1998), the police had received information that one Shelby, an escaped convict with a history of violence, might be found at defendant's home in Boring, Arizona, and that there might be a stash of guns and drugs in the garage. A deputy U.S. marshal obtained a "no-knock" warrant to enter and search the home. On November 5, 1994, about forty-five officers who had gathered to execute the warrant set up a loudspeaker and began announcing that they had the warrant. Simultaneously, they broke one window in the garage and pointed a gun inside. The defendant, hearing the noise, feared that there were burglars. He grabbed a gun and fired into the garage ceiling. The officers fired back, shouting "police." The defendant ran to the living room and threw away his pistol. Together with his wife and child, he was taken into custody. Shelby was not found. Defendant was indicted for the possession of guns as a convicted felon. The district court granted a motion to suppress the evidence, finding that the police had violated the Fourth Amendment and 18 U.S.C. § 1309 because there were "insufficient exigent circumstances" to justify the destruction of property in the execution of the warrant. The Ninth Circuit affirmed, but the Supreme Court reversed, unanimously. The Chief Justice's opinion for the Court relied on Wilson v. Arkansas, 514 U.S. 927 (1995), and Richards v. Wisconsin, 520 U.S. ___ (1997). Wilson established that there was no rigid rule requiring announcement, although an unannounced entry "might be unreasonable under the Fourth Amendment." Richards held that, to justify a no-knock entry, the police must have a "reasonable suspicion" that knocking and announcing "would be dangerous or futile," or would inhibit an effective investigation. The lawfulness of a no-knock entry does not depend on whether property is damaged in the course of the entry. "Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment," but if the entry itself is lawful, the fruits of the search are not subject to suppression. Here, there was no violation; the police conduct was reasonable. Section 1309 of 18 U.S.C. "includes an exigent circumstances exception," measured by the Richards standard. Evidence In United States v. Scheffer, 66 U.S.L.W. 4235 (decided Mar. 31, 1998), the Court upheld Military Rule of Evidence 707, which prohibits the use of polygraph tests as evidence. Many states have similar rules. Justice Thomas wrote the Court's opinion with the substantial agreement of seven other Justices. "Rule 707 serves several legitimate interests in the criminal trial process," including "ensuring that only reliable evidence is introduced at trial." The rule "does not implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents." Only the Chief Justice and Justices Scalia and Souter agreed with Justice Thomas that the governmental interests in preserving the jury's role in determining credibility and avoiding litigation over collateral issues were implicated. Justice Kennedy, in a concurring opinion joined by Justices O'Connor, Ginsburg, and Breyer, thought admission of the results of a polygraph test would not undermine the jury's role. Justice Stevens dissented, believing the government concerns cited "are plainly insufficient to support a categorical rule that prohibits the admission of polygraph evidence in all cases, no matter how reliable or probative the evidence may be." State & Local Law News home page | Table of Contents