State & Local News Vol. 23, No. 1, Fall 1999 SUPREME COURT WATCH By Beate Bloch The Court wound up its October 1998 Term by issuing three 5-4 decisions reviving the Tenth and Eleventh Amendments to uphold claims of state sovereign immunity. The last weeks of the Term also produced other decisions important to state and local governments involving diverse issues. Sovereign Immunity In Florida Prepaid Postsecondary Educational Expense Board v. College Savings Bank, 67 U.S.L.W. 4580 (decided June 23), the Court held that the Eleventh Amendment barred a patent infringement suit against a state. A 1992 amendment to the patent laws expressly abrogated the states' sovereign immunity from claims for patent infringement. Chief Justice Rehnquist, for the Court, held that Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), had overruled Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), to hold that Congress cannot abrogate the states' sovereign immunity under its Article I powers. In this case, the challenged statute could not be upheld under the Fourteenth Amendment, because Congress had not identified a "pattern of patent infringement by the States." The Federal Circuit had found only eight patent infringement suits filed against states between 1880 and 1990. There was no showing that state remedies were inadequate. Patent infringement, moreover, need not be willful, and merely negligent conduct would not violate due process. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented on the ground that Congress has plenary authority over patents and copyrights. There are no effective state remedies, and any state remedies that existed would be preempted. The suit alleged willfulness. In College Savings Bank v. Florida Prepaid Postsecondary Educational Expense Board, 67 U.S.L.W. 4590 (decided June 23), the Court invalidated the Trademark Remedies Clarification Act, which subjects states to suit for false and misleading advertising. Justice Scalia's opinion for the Court ruled that there is no property right in freedom from false advertising. Dissenting opinions were filed by Justices Stevens and Breyer (who was joined by Justices Stevens, Souter, and Ginsburg). Finally, in Alden v. Maine, 67 U.S.L.W. 4601 (decided June 23), the Court, in an opinion by Justice Kennedy, affirmed the dismissal of a state court suit filed by probation officers under the Fair Labor Standards Act. Justice Souter's dissenting opinion was joined by Justices Stevens, Ginsburg, and Breyer. Intergovernmental Immunity Jefferson County, Alabama v. Acker, 67 U.S.L.W. 4521 (decided June 21), involved an Alabama statute authorizing counties to impose on persons who paid no other license tax to the state or county a "license or privilege tax" for engaging in business in the county. Pursuant to this law, the county imposed a tax of .5 percent of "gross receipts," consisting of compensation paid in the county, and filed suit against two U.S. district court judges to collect the tax. Justice Ginsburg wrote the Court's opinion, holding (1) that the action was properly removed to federal court (Justice Scalia, joined by the Chief Justice, and Justices Souter and Thomas, dissented from this part of the opinion, but concurred in the judgment); (2) that the Tax Injunction Act does not bar a tax collection suit; and (3) that intergovernmental tax immunity was not implicated. Justice Breyer, joined by Justice O'Connor, dissented. Voting Rights Act Hunt v. Cromartie, 67 U.S.L.W. 4306 (decided May 17), brought to the Court for the third time the redistricting of Georgia's 12th Congressional District. Justice Thomas wrote the Court's opinion, reversing the summary judgment that had been granted to the plaintiffs and remanding the case for a factual determination. The record did not make it clear whether the legislature had been motivated by race or merely by political considerations. Justice Stevens wrote a concurring opinion, which was joined by Justices Souter, Ginsburg, and Breyer. Search and Seizure In Florida v. White, 67 U.S.L.W. 4311 (decided May 17), the police had observed the defendant delivering cocaine. Months later, he was arrested on unrelated charges. The police seized his car under Florida's Contraband Forfeiture Act, and later found two pieces of crack cocaine in the ashtray. White, who was convicted of possession of a controlled substance, sought to suppress the evidence found in his car. The Florida court held that the police could search but not seize the car and reversed the conviction. The Supreme Court reversed. Justice Thomas's opinion for the Court held that no warrant was required because there had been no invasion of White's privacy. Justice Souter was joined by Justice Breyer in a concurring opinion. Justice Stevens, joined by Justice Ginsburg, dissented. In Wilson v. Layne, 67 U.S.L.W. 4322 (decided May 24), the Court ruled without dissent that the police should not have invited the media to go along when executing an arrest warrant in a private home. Chief Justice Rehnquist's opinion for the Court held, however, that the defendants were entitled to qualified immunity because the law had not been clearly established when the arrest took place. Justice Stevens, concurring in part, thought that the officers should have known that it was unconstitutional to invite the media. Hanlon v. Breger, 67 U.S.L.W. 4329, decided per curiam on the same day, raised a similar issue with the same result (Justice Stevens again concurring in part). Due Process In City of Chicago v. Morales, 67 U.S.L.W. 4415 (decided June 10), the Court, voting 6-3, invalidated an ordinance that prohibits "criminal street gang members" from loitering in public places. The ordinance requires such persons to disperse promptly if ordered to do so by a police officer. Justice Stevens, writing for the Court, found the ordinance too broad. The First Amendment was not implicated, because speech was not prohibited. However, the freedom to loiter for innocent purposes is a "liberty" protected by the Due Process Clause. Six Justices thought the ordinance did not establish sufficient guidelines to govern law enforcement officers. Justices Souter and Ginsburg thought the ordinance too vague because it did not make clear what was prohibited. Dissenting opinions were filed by Justices Scalia (joined by Justice Thomas) and Thomas (joined by the Chief Justice and Justice Scalia). Freedom of Speech Greater New Orleans Broadcasting Association v. United States, 67 U.S.L.W. 4451 (decided June 14), involved 18 U.S.C. § 1304, which prohibits some broadcast advertising of lotteries and casino gambling. The Court, without dissent, held that the statute could not be used to prohibit advertisements of private casino gambling in Louisiana, where gambling is legal. Justice Stevens, writing for the Court, distinguished United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), which had held that broadcast advertising of the Virginia lottery could be prohibited in North Carolina where no lottery was authorized. The Chief Justice and Justice Thomas concurred in the judgment. Privileges and Immunities In Saenz v. Roe, 67 U.S.L.W. 4291 (decided May 17), the Court, voting 7- 2, invalidated a California law limiting welfare payments to new residents of the state for one year to the amount they would have received in the state they had left. Justice Stevens, writing for the Court, relied on the right to travel, which includes, "for those who become permanent residents, the right to be treated like other citizens of that State." The state had relied on a 1996 amendment to the Social Security Act, which approved durational residency requirements. The Court ruled that "Congress may not authorize the States to violate the Fourteenth Amendment." Chief Justice Rehnquist, joined in dissent by Justice Thomas, who also wrote a dissenting opinion that was joined by the Chief, thought the right to travel was not at issue, because the law imposed no obstacle to entry into California. Americans with Disabilities Act Olmstead v. L.C., 67 U.S.L.W. 4567 (decided June 22), was filed under Title II of the ADA by two women patients in mental hospitals. In each case, a psychiatrist had concluded that the patient could be treated in community-based facilities. The Court ruled, 6-3, that the failure to provide them with community-based treatment could amount to discrimination within the meaning of the ADA. Justice Ginsburg, writing for the Court, held that a state must provide community-based treatment for persons with mental disabilities "when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Justices Stevens and Kennedy (with the partial concurrence of Justice Breyer) wrote concurring opinions. Justice Thomas, joined by the Chief Justice and Justice Scalia, dissented, finding no discrimination. Sex Discrimination In Davis v. Monroe County [Georgia] Board of Education, 67 U.S.L.W. 4329 (decided May 24), the Court held, 5-4, that harassment of a student by another student may provide the basis for injunctive relief and damages under Title IX of the Education Amendments of 1972. The plaintiff alleged that on several occasions during a five-month period a male fifth grade student had abused her daughter, a classmate, with sexually offensive language and conduct. The incidents had all been reported promptly to the responsible teacher and to the principal of the school. The complaint charged the Board with deliberate indifference to the discriminatory conduct. A judgment dismissing the complaint was reversed. Justice O'Connor's opinion for the Court held that student-on-student harassment may rise to the level of "discrimination" for purposes of Title IX. However, such an action may lie "only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities," and "only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." In order to succeed in her action against the Board, the plaintiff must show actual knowledge of the discriminatory conduct. Justice Kennedy's dissenting opinion was joined by the Chief Justice and by Justices Scalia and Thomas. Taking Monterey, California v. Del Monte Dunes of Monterey, 67 U.S.L.W. 4345 (decided May 24,), was a suit filed by a developer whose proposals for development of a property had been repeatedly rejected by the city after successive modifications. The suit, filed under 42 U.S.C. § 1983, charged complete deprivation of the use of the property and that California law provided no adequate post-deprivation remedy. The Court held, 5-4, in an opinion by Justice Kennedy, that the plaintiff was entitled to a jury trial in its "inverse condemnation" action. Justice Souter was joined in dissent by Justices O'Connor, Ginsburg, and Breyer. Beate Bloch is a legal writing consultant in Washington, D.C. 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