State & Local News Vol. 20, No. 4, Summer 1997 SUPREME COURT WATCH By Beate Bloch States have been faring well before the Court in its recent decisions. Commerce Clause In General Motors Corporation v. Tracy, 65 U.S.L.W. 4086 (decided Feb. 18, 1997), the Court rejected a challenge to Ohio's sales and use tax, which is imposed on natural gas purchases from all sellers except regulated public utilities that meet the state's definition of a "natural gas company." The exemption is granted only to "LDCs" (local distribution companies), and not to independent marketers. General Motors purchased natural gas for its Ohio plants from out-of-state marketers, although local delivery was frequently made by LDCs. Justice Souter's opinion for the Court noted that "natural gas companies" had been exempted from the Ohio sales tax since it was first imposed in 1935. Producers and independent marketers, non-LDC sellers, are not "natural gas companies" and therefore are subject to the tax. The Court disagreed with the Ohio Supreme Court's ruling that General Motors lacked standing under Article III to protest the tax, holding that "[c]ognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a statute ultimately discriminates, . . . as in this case where the customer is liable for payment of the tax." The opinion reviewed the history of federal regulation of the marketing of natural gas. The Natural Gas Act of 1938 exempted "local distribution of natural gas" from federal regulation. In 1978, the Natural Gas Policy Act preserved "the States' traditional autonomy to authorize and regulate local gas franchises." LDCs sell gas "bundled with rights and benefits mandated by state regulators." Their product thus differs "from the marketer's unbundled gas." Accordingly, the Court held, the "negative" Commerce Clause does not come into play, because "the LDCs' bundled product reflects the demand of a market neither susceptible to competition by the interstate sellers nor likely to be served except by the regulated natural monopolies that have historically supplied its needs." The opinion acknowledged the existence of "a further market where the respective sellers of the bundled and unbundled products apparently do compete and may compete further." But the Court declined to hold that "the opportunities for competition between marketers and LDC's in the noncaptive market requires treating marketers and utilities as alike for dormant Commerce Clause purposes." The opinion observed that "should intervention by the National Government be necessary, Congress has both the resources and the power to strike the balance between the needs of the competitive and captive markets." The opinion also noted that out-of-state utilities might be found to qualify for the exemption if the question were raised. General Motors' additional claim, under the Equal Protection Clause, received short shrift, because there is "unquestionably a rational basis for Ohio's distinction between these two types of entities." Justice Scalia wrote a concurring opinion. Justice Stevens dissented. Preemption California Division of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc., 65 U.S.L.W. 4097 (decided Feb. 18, 1997), involved California's "prevailing wage" law for contractors on public works projects. The law provides an exception for an approved apprenticeship program. Reversing the decision of the Ninth Circuit Court of Appeals, the Court ruled, without dissent, that ERISA does not preempt that law. Justice Thomas, writing for the Court, held that "to the extent that the law prohibits payment of an apprentice wage to an apprentice trained in an unapproved program," it does not "relate to" employee benefit plans. An approved apprenticeship program is not necessarily an ERISA plan, because it need not be funded through a special fund, which is a prerequisite of such a plan. The opinion pointed out that "[t]he wages to be paid on public works projects and the substantive standards to be applied to apprenticeship training programs" are "quite remote from the areas with which ERISA is expressly concerned 'reporting, disclosure, fiduciary reporting, and the like,'" citing New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. ___ (1995). Justice Scalia, joined by Justice Ginsburg, wrote a separate concurring opinion. Eleventh Amendment In Regents of the University of California v. Doe, 65 U.S.L.W. 4129 (decided Feb. 19, 1997), the respondent had sued the Regents for breach of contract because of their failure to hire him as a mathematical physicist at Lawrence Livermore National Laboratory, a facility operated pursuant to a contract with the federal government. Justice Stevens, writing for a unanimous Court, held that the Eleventh Amendment "protects the State from the risk of adverse judgments even though the State may be indemnified by a third party." 1983 Liability In Arizonans for Official English v. Arizona, 65 U.S.L.W. 4169 (decided Mar. 3, 1997), another unanimous decision, Justice Ginsburg, speaking for the Court, vacated as moot a judgment declaring unconstitutional Arizona's constitutional amendment making English the state's official language. The litigation, commenced in 1988 when the amendment was adopted, had lingered in the courts for nearly nine years, in the course of which the original plaintiff left her state employment and went to work in the private sector. Both the district court and the court of appeals had given the amendment a very broad sweep, rejecting the suggestion of the Arizona attorney general that its proper interpretation be referred to the Arizona Supreme Court. Justice Ginsburg's opinion stated that this course should have been followed. In Blessing v. Freestone, 65 U.S.L.W. 4265 (decided Apr. 21, 1997), the Court, again unanimously, reversed a decision of the Ninth Circuit to hold that Title IV-D of the Social Security Act does not create an enforceable individual right to have a state's program achieve "substantial compliance" with its requirements. In order to qualify for federal AFDC funds, a state must certify that it will operate a child support enforcement program that meets specified requirements, pursuant to a detailed plan approved by the Secretary of the Department of Health and Human Services. Arizona had a very poor enforcement record. Plaintiffs alleged that the state never took adequate steps to obtain child support payments from their children's fathers because of structural defects in the program. Justice Ginsburg, writing for the Court, held that "[i]n order to seek redress through 1983," a plaintiff "must assert the violation of a federal right, not merely a violation of federal law." Here, the complaint failed to specify any individual rights that had been violated. Because of the very limited enforcement scheme, there may be such rights. The case was reversed and remanded for that determination. In Board of County Commissioners of Bryan County, Oklahoma v. Brown (decided Apr. 28, 1997), a 5 4 decision, the Court reversed a judgment entered on a verdict against the county for injuries sustained by Brown when a police officer used excessive force in arresting her. The Browns' van had turned away from a roadblock, and two officers gave chase, possibly at speeds as high as 100 miles per hour. When Jill Brown, a passenger, ignored officer Burns' order to exit the vehicle, he pulled her from the van, spinning her to the ground, and she sustained severe knee injuries. Liability had been predicated on the county's decision to hire Burns (a great-nephew of the sheriff), without paying sufficient heed to his record of driving infractions, assault and battery, resisting arrest, and public drunkenness. Burns had not been authorized to carry a weapon or to operate a patrol car. Justice O'Connor, speaking for the Court, ruled ". . . it is not enough for a 1983 plaintiff merely to identify conduct properly attributed to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." There must be a "direct causal link." In the present case, there was no contention that the county's hiring practices were generally defective. "Every injury suffered at the hands of a municipal employee can be traced to a hiring decision in a 'but-for' sense. . . . To provide municipal liability for a hiring decision from collapsing into respondeat superior liability, a court must carefully test the link between the policymaker's inadequate decision and the particular injury alleged." A single instance of inadequate screening "is not enough to establish 'deliberate indifference.'" A plaintiff must show the likelihood of the particular injury to the plaintiff. Justice Souter was joined by Justices Stevens and Breyer in dissent, on the ground that there was a deliberate indifference to the substantial risk of a constitutional violation. Justice Breyer was joined by Justices Stevens and Ginsburg in a separate dissent. First Amendment In Timmons v. Twin Cities Area New Party, 65 U.S.L.W. 4273 (decided Apr. 28, 1997), the Court, voting 6 3, reversed a decision of the Eighth Circuit and upheld a Minnesota law prohibiting multiple-party, or "fusion" candidates for elective office. The law provided that an individual could not appear on the ballot as the candidate of more than one party. Chief Justice Rehnquist wrote the Court's opinion, acknowledging that the First Amendment protects the right to associate and to form political parties. But states may enact reasonable regulations of parties, elections, and ballots. "That a particular individual may not appear on the ballot as a particular party's candidate does not severely burden the party's association rights." The party is free to endorse who it likes. "Ballots serve primarily to elect candidates, not as forae for political expression." The burdens on associational rights "are justified by 'correspondingly weighty' valid state interests in ballot integrity and political stability." Justice Stevens, in a dissent joined by Justice Ginsburg and in major part by Justice Souter, thought: "the right to be on the election ballot is precisely what separates a political party from every other interest group." Search and Seizure In Maryland v. Wilson, 65 U.S.L.W. 4124 (decided Feb. 19, 1997), a divided Court held that a police officer may order passengers, as well as the driver, of a lawfully stopped car to exit the vehicle. The Chief Justice's opinion for the Court cited the potential danger to police officers from persons occupying a stopped vehicle. Justice Stevens, joined by Justice Kennedy in dissent, thought the ruling went too far, because it applied to "traffic stops in which there is not even a scintilla of evidence of any potential risk to the police officer. Justice Kennedy also dissented separately. In Richards v. Wisconsin, 65 U.S.L.W. 4283 (decided Apr. 28, 1997), a unanimous court affirmed the decision of the Wisconsin Supreme Court upholding the execution of a search warrant without following a "knock and announce" procedure. The police had requested, but had not received authorization for a "no-knock" entry. An officer knocked on the door of defendant's hotel room, saying that he was a maintenance man. The defendant opened the door on a chain and, when he spotted a man in uniform outside, slammed it shut. The officers then broke into the room, caught the defendant trying to escape through the window, and found stashes of cash and cocaine. The Court, in an opinion by Justice Stevens, disagreed with the Wisconsin courts' ruling that police officers are never required to knock and announce when executing a search warrant in a felony drug investigation. The decision, however, was reasonable under the circumstances here. Endnotes 1. Travelers, which upheld a New York law requiring hospitals to collect surcharges from patients insured by carriers other than Blue Cross-Blue Shield, was reported in "Supreme Court Watch," 18 St. & Loc. L. News No. 4, at 6 (Summer 1995). State & Local Law News home page | Current Table of Contents