State & Local News Vol. 22, No. 2, Winter 1999 SUPREME COURT WATCH By Beate Bloch This will be a brief roundup of the Court’s end-of -Term decisions that have importance for state and local governments. Worth mentioning - although directly concerning only two states - is State of New Jersey v. State of New York, 66 U.S.L.W. 4389 (decided May 26, 1998), where the Court awarded filled-in land constituting most of historic Ellis Island to New Jersey. Justice Souter’s opinion for the Court notes the "difficulties of a boundary line that divides not just an island but some of the buildings on it," but found the 1834 compact between the two states conclusive. Justice Breyer’s concurring opinion was joined by Justice Ginsburg. Dissenting opinions were filed by Justice Stevens and by Justice Scalia, who was joined by Justice Thomas. Other decisions will have broader consequences. Eleventh Amendment In California v. Deep Sea Research, Inc., 66 U.S.L.W. 4286 (decided Apr. 22, 1998), the Court upheld the maintenance of a federal court suit, under in rem admiralty jurisdiction, to rights in a vessel and its cargo which had been sunk off the coast of California in 1865. Justice O’Connor, writing for the unanimous Court, ruled that the Eleventh Amendment did not bar the federal court’s exercise of jurisdiction pursuant to Article III, § 2, cl. 1, of the Constitution ("all cases of admiralty and maritime jurisdiction"), because the state did not have possession of the wreck. Concurring opinions were written by Justice Stevens and by Justice Kennedy (joined by Justices Ginsburg and Breyer). Civil Rights Crawford-El v. Britton, 66 U.S.L.W. 4311 (decided May 4, 1998), was a suit filed under 42 U.S.C. § 1983, alleging that a prisoner’s property had been diverted because of an intent to retaliate for the exercise of his First Amendment rights. The Supreme Court held that the court of appeals had erred in imposing a heightened burden of proof (clear and convincing evidence) to establish the unconstitutional motive of a public official. Justice Stevens, for the Court, ruled that the reasoning of Harlow v. Fitzgerald, 457 U.S. 800 (1982), "does not justify a rule that places a thumb on the defendant’s side of the scales when the merits of a claim that the defendant knowingly violated the law are being resolved." Harlow, the opinion pointed out, involved the immunity defense, not the cause of action. A new rule would have to await action by Congress. Justice Kennedy concurred on the last ground. Chief Justice Rehnquist (joined by Justice O’Connor), and Justice Scalia (joined by Justice Thomas) dissented. First Amendment Arkansas Educational Television Commission v. Forbes, 66 U.S.L.W. 4360 (decided May 18, 1998), upheld the exclusion of Forbes, who had qualified as an independent candidate, from a debate sponsored by a state-owned public television station based on a "reasonable, viewpoint-neutral exercise of journalistic discretion." The AETC staff had limited participation to major party candidates and others with "strong popular support." In the Third Congressional District, only the Republican and Democratic candidates were permitted to participate. The district court held that the debate was a nonpublic forum, and a jury found the decision was not motivated by political pressure or disagreement with Forbes’ views. The Eighth Circuit reversed, on the ground that the debate was a public forum, and the Supreme Court, in turn, reversed. Justice Kennedy’s opinion for the Court held that the debate was not a traditional public forum, nor a "designated public forum," because there was no intention to make the property "generally available." Because access was selective, it was a nonpublic forum. The opinion drew an analogy to the federal government’s determination of what agencies could participate in the annual CFC drive (citing Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788 (1985)). The decision was not viewpoint-based. Justice Stevens, joined by Justices Souter and Ginsburg in dissent, pointed to substantial losing vote totals garnered by Forbes in previous elections, and objected that there were no standards for the decision. Indians In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 66 U.S.L.W. 4384 (decided May 26, 1998), the Court upheld the Tribe’s immunity from a suit on a promissory note brought in a state court. Justice Kennedy, writing for the Court, pointed out that Congress had the power to change the immunity. Justice Stevens, joined by Justices Thomas and Ginsburg, dissented, on the ground that there was no applicable federal statute or treaty provision giving the Tribe immunity from the application of state law to its off-reservation commercial activities. In Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 66 U.S.L.W. 4453 (decided June 8, 1998), the Court held, unanimously, that state and local governments may tax "reservation land that was made alienable by Congress and sold to non-Indians by the Federal Government," even though it was later repurchased by a tribe. Justice Thomas, writing for the Court, noted that under the Indian Reorganization Act of 1934, the Tribe could request the Secretary of the Interior to take title to the land in trust for the Tribe, resulting in its immunity from taxation, and that the Tribe had, in fact, done so for seven of the eight parcels at issue. Taking Phillips v. Washington Legal Foundation, 66 U.S.L.W. 4468 (decided June 15, 1998), presented a challenge to Texas’ Interest on Lawyers Trust Account (IOLTA) program. Pooled client funds were deposited in a bank account, and the interest paid to foundations that finance legal services for low-income individuals. The program was only for funds "nominal in amount" or "held for a short period of time," and only if the attorney determined that they "could not reasonably be expected to earn interest for the client" in an amount sufficient to offset the cost of establishing and maintaining the account. Chief Justice Rehnquist, for the Court, held that the interest earned on these accounts was the property of the clients for purposes of the Takings Clause, under the general rule that interest follows the principal. The opinion did not decide whether these funds had been "taken" by the state, or, if they were, what compensation - if any - would be due. Dissenting opinions were filed by Justice Souter (joined by Justices Stevens, Ginsburg, and Breyer), on the ground that the real issue (i.e., whether there was a "taking") remained unresolved; and by Justice Breyer (joined by Justices Stevens, Souter, and Ginsburg), on the ground that the client could not have received any net interest, so that no property could have been "taken." Discrimination In Pennsylvania Department of Corrections v. Yeskey, 66 U.S.L.W. 4481 (decided June 15, 1998), a unanimous Court held that Title II of the Americans with Disabilities Act of 1990 applies to inmates in state prisons. Yeskey had been sentenced in May 1994 to serve eighteen to thirty-six months in prison. The sentencing court recommended that he be sent to the Pennsylvania Motivational Boot Camp for first-time offenders, which would have led to his release on parole after six months. He was refused admission because of a medical history of hypertension. Justice Scalia, writing for the Court held that the ADA applied, but declined to decide whether the application of the Act to state prisons was constitutional, because that question had not been addressed below. Gebser v. Lago Vista Independent School District, 66 U.L.S.W. 4501 (decided June 22, 1998), an action for damages for sexual harassment, was brought by a teenager whose teacher, Waldron, had had a sexual relationship with her for about two years. During that time, parents of other students complained about Waldron making suggestive remarks in class, and he apologized. Waldron’s affair with Gebser was never reported to higher authority. When a policeman found Waldron having sex with Gebser, he was arrested. He was fired, and later his teaching license was revoked. The district had no official grievance procedure for sexual harassment and no formal policy in that regard. The Court, voting five to four, affirmed a judgment dismissing the complaint. Justice O’Connor’s opinion for the Court acknowledged that Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), held that monetary damages were available in an implied private action under Title IX, but did not define the contours of such liability. The opinion pointed out that Title IX differs from Title VII, which defines "employer" to include "any agent." The Court concluded it would frustrate the purpose of Title IX "to permit a damages recovery against a school district for a teacher’s sexual harassment of a student based on principles of respondeat superior or constructive notice, i.e., without actual notice to a school district official." The opinion further differentiated Title IX, which provides a condition of federal funding, from Title VII, which is a prohibition against discrimination. The opinion noted that an administrative agency cannot initiate enforcement proceedings until after notification and a determination that voluntary compliance cannot be obtained. There must be actual notice and a failure to respond. Dissenting opinions were filed by Justice Stevens (joined by Justices Souter, Ginsburg, and Breyer), and by Justice Ginsburg (joined by Justices Souter and Breyer). Faragher v. City of Boca Raton, 66 U.S.L.W. 4643 (decided June 26, 1998), was a suit under Title VII for sexual harassment of female lifeguards by Silverman and Terry, two of their three immediate supervisors. The harassment consisted of offensive language and body touching. The city had adopted a sexual harassment policy in February 1986 and revised it in 1990. The policy was distributed to some employees, but not to the Marine Safety Section, where Faragher was employed. In 1990, another female former lifeguard had complained to the city’s personnel director about sexual harassment by the two supervisors. After an investigation, the city reprimanded and disciplined Silverman and Terry. The Eleventh Circuit had reversed a judgment against the city, on the ground that it had no constructive knowledge of the supervisors’ behavior. The Supreme Court reversed, and reinstated the district court judgment. Justice Souter’s opinion concluded that the city did not exercise reasonable care to prevent the harassing conduct. Justice Thomas, joined by Justice Scalia, dissented, on the ground that there should be no vicarious liability because there had been no adverse employment consequences. Due Process County of Sacramento v. Lewis, 66 U.S.L.W. 4407 (decided May 26, 1998), involved a high-speed chase by a police car of a motorcycle operated by an eighteen year old youth who refused a command to stop. The chase continued for seventy-five seconds, reaching a speed as high as 100 miles per hour, and culminated in the death of the motorcycle’s sixteen year old passenger, whose parents instituted the suit under 42 U.S.C. § 1983, asserting that their son had been deprived of his right to life in violation of the Fourteenth Amendment. The Court, in an opinion by Justice Souter, ruled without dissent that the county could not be held liable, because there was no executive abuse of power that would shock the conscience. The Court emphasized the difference between situations like pretrial custody and high-speed law enforcement, where "deliberate indifference" could not be an appropriate test. The Chief Justice, and Justices Kennedy (joined by Justice O’Connor), Breyer, Stevens, and Scalia (joined by Justice Thomas) filed separate concurring opinions. Fourth Amendment In Pennsylvania Board of Probation and Parole v. Scott, 66 U.S.L.W. 4524 (decided June 22, 1998), the Court, in an opinion by Justice Thomas, ruled, five to four, that the exclusionary rule does not apply in parole revocation proceedings, and that evidence obtained by an illegal search could be used in such proceedings. Dissenting opinions were filed by Justices Stevens and Souter (joined by Justices Ginsburg and Breyer). Beate Bloch is a legal writing consultant in Washington, D.C. State & Local Law News home page | Table of Contents