SUPREME COURT WATCH

By David ButleRitchie

This issue’s column is dedicated to the memory of my friend and colleague Tony Sutin. Tony was tragically taken from us on January 16, 2002. His work was an inspiration to all those who knew him, and his contributions to this publication will be missed.

The Supreme Court continues to tackle cases that have serious implications for state and local government lawyers. Thus far this Term, the high court has heard a case concerning the right of municipalities to regulate the time, place, and manner of protest gatherings. ¹ The Court also intends to hear a case concerning the right of the federal government to assess costs for nuclear cleanup against utilities that used enriched uranium to generate electrical power. ² This case has implications for municipalities who must decide whether to allow the cost of these assessments to be passed on to consumers. Finally, the Court will decide whether national political redistricting can be effected under controversial methods employed by the U.S. Census Bureau.³ As the Term plays out, the Court’s the decisions in these cases will have an impact on the work of all members of the Section.

On January 15, 2002, the Court handed down its decision in Thomas v. Chicago Park District, which again addressed the question of the extent to which municipalities can regulate political gatherings on publicly owned property. The Court further solidified the principle that local governmental entities may regulate political gatherings as to time, place, and manner when such regulations are equally applied and are necessary to ensure the reasonable and proper use of public property. Justice Scalia, writing for the unanimous Court, maintained that the decision was simply an application of the long held proposition that "content-neutral time, place and manner regulation of the use of a public forum" ⁴ are entirely within the purview of municipal authorities.

The case arose out of a dispute between the Chicago Park District and the Windy City Hemp Development Board, a private group that advocates the legalization of marijuana. The Park District has implemented a thirteen-point guideline that must be met by any group that has fifty or more members before a permit for a public gathering will be issued. The Windy City Hemp Development Board applied for such a permit several times. The group received permits for some gatherings, but were denied on other occasions. The private group sued the city claiming that the denials were a prior restraint on free expression. Lawyers for the group argued that Chicago’s rules are analogous to state censorship rules that were struck down in Freedman v. Maryland. ⁵

In Freedman, the Court held that a theater that wished to show a movie banned under city guidelines was entitled to a prompt hearing by a reviewing court. The Windy City Hemp Development Board maintained that it was entitled to this sort of prompt judicial review. The review process involved in the regulatory scheme implemented by the Chicago Park District could lead to a delay for as long as six weeks before those denied a permit could have their denial reviewed in court. This delay, according to the Windy City group, is an unreasonable restraint on free expression.

The Supreme Court rejected this argument, maintaining that the neutral application of the rules did not constitute subject-matter censorship. The Court pointed to the fact that none of the possible reasons for denial available to the park district authorities involved the content of speech. Because the park district’s review process is content-neutral, the Court accepted the city’s argument that the regulatory scheme is necessary to "coordinate multiple uses of limited public space, assure preservation of park facilities, prevent dangerous, unlawful or impermissible uses and assure financial accountability for damages caused by an event." ⁶

While Scalia noted that content-neutral time, place, and manner regulations can be employed in ways that suppress free expression, he maintained that constitutional safeguards are met when the regulations are narrowly drawn, allow for judicial review, and do not permit unreasonable discretion on the part of the official administering the regulatory scheme. Since the Chicago Park District regulations meet these requirements, the Court rejected Windy City’s arguments that their First Amendment right had been violated in instances when the park district rejected its application for a permit. According to Lani Williams, associate counsel of the International Municipal Lawyers Association, Thomas "firms up where we say we’ve always been." ⁷

The message here is clear: in order to "safeguard the good order upon which [civil liberties] ultimately depend," ⁸ municipalities can continue to employ time, place, and manner regulations concerning access to public property. As long as municipal officials continue to formulate their access regulations according to the guidelines discussed by Scalia in Thomas, they can be reasonably confident that such regulations will be upheld in the courts. When regulations are not reasonably specific and objective, or where a regulatory scheme leaves discretion "to the whim of the administrator," ⁹ however, First Amendment protections are potentially in danger.

The Court’s task in two cases to be decided later this term will likely be somewhat more contentious and controversial. In Sacramento Municipal Utility District v. United States, ¹⁰ the Court must decide whether the federal government can assess fees to utility companies that purchased enriched uranium for use in nuclear power stations. Utah v. Evans, the second case, involves a challenge by the State of Utah to the use of "hot-deck imputation" by the U.S. Census Bureau. Both cases have the potential to significantly impact public entities at the state and local levels.

In the Sacramento case, the Court must decide whether "special assessments" imposed upon local utilities that used nuclear power to generate electricity by the Energy Policy Act of 1992 ¹¹ (EPACT) constitute an unreasonable taking of public property without just compensation. The case, which stems from the decision of the U.S. Court of Appeals for the Federal Circuit in Maine Yankee Atomic Power Co. v. United States, ¹² is significant in that it will certainly impact the extent to which local utilities will be liable for the cost of the cleanup of uranium processing. Under EPACT, the federal government can assess fees for the cleanup to any domestic utility that benefited from the federal government’s uranium enrichment program between 1954 and 1992.

While the Court will address the retroactive application of EPACT to power providers, of more immediate interest to members of the Section may be the acceptability of the "pass-through" provision of the statute, which allows the special assessments to "be deemed a necessary and reasonable current cost of fuel [which] shall be fully recoverable in rates in all jurisdictions in the same manner as the utilities’ other fuel costs." ¹³ The court below questioned whether this provision of EPACT effectively preempts the authority of state regulatory bodies. ¹⁴ In essence, the question is "to what extent (if any) state and local regulatory agencies and courts [will] permit the Utilities to treat the assessments as a ‘current cost of fuel.’" ¹⁵ It remains to be seen whether the Supreme Court will address this particular question head on, but if the Court decides that the assessments are not an unreasonable taking every utility that has benefited from the federal uranium enrichment program during the period in question will attempt to pass the costs of cleanup on to consumers. State public utility boards will then have to determine whether the pass-through provision of EPACT interferes with their regulatory authority. That fight will undoubtedly have a tremendous impact on the work of Section members.

The Court recently announced that it will hear arguments in Utah v. Evans, ¹⁶ a case that could substantially effect the makeup of the U.S. House of Representatives. The case, which is slated for oral argument on March 27, 2002, will address whether the use of a controversial statistical method employed by the U.S. Census Bureau violates the constitutional mandate that an actual enumeration of all U.S. residents be undertaken every ten years. The method—called "hot-deck imputation"—allows the Census Bureau to impute residents based upon characteristics of the neighborhood. Lawyers for the State of Utah argue that this method violates the "actual enumeration" requirement, as well as a federal law that bans the use of "sampling" methods by the Census Bureau in any count that will be used to apportion seats in the House of Representatives. ¹⁷

Utah, which claims that the use of this method effectively "samples" neighborhoods when a full and complete count either was not or could not be done, stands to lose a seat in the House. North Carolina will gain the seat under current census indicators. North Carolina, along with the federal government, maintains that the method is a permissible means of filling in specific incomplete data. ¹⁸ The Supreme Court has decided to hear this case in expedited fashion in order to resolve the dispute before the elections in November 2002.

The Supreme Court’s rulings in these cases will give Section members plenty to talk about at upcoming Section events. While the Thomas decision reaffirms the Court’s previous holdings regarding the ability of municipalities to control access to public property, the rulings in both the Sacramento Municipal Utilities District and Utah cases are likely to draw new lines in controversial territory. Each will certainly have an impact on public entities at the state and local levels.

Endnotes

1. Thomas v. Chicago Park District, No. 00-1249 (Jan. 15, 2002).
2. Sacramento Municipal Utility District v. United States, No. 01-1020.
3. Utah v. Evans, No. 01-714.
4. Thomas, slip op. at 6.
5. 380 U.S. 51 (1965).
6. Thomas, slip op. at 6.
7. http://www.washingtonpost.com/wp_dyn/articles/A51494_2002Jan15.html
8. Thomas, slip op. at 7, quoting Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
9. Thomas, slip op. at 8, quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992).
10. Sacramento Municipal Utility District, No. 01-1020.
11. 42 U.S.C. § 2297 (1994).
12. 271 F.3d 1357 (Fed. Cir. 2001).
13. 42 U.S.C. § 2297g-1(g). See Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1334 (Fed. Cir. 2001); Mississippi Power and Light Co. v. Mississippi, 487 U.S. 354, 369-72 (1988).
14. Maine Yankee, 271 F.3d at 1367.
15. Id.
16. Utah v. Evans, No. 01-714.
17. http://www.washingtonpost.com/wp_dyn/articles/A21852_2002Jan22.html.
18. Id.

David ButleRitchie is an assistant professor of law at the Appalachian School of Law in Grundy, Virginia.