State & Local News Vol. 22, No. 4, Summer 1999 SUPREME COURT WATCH By Beate Bloch This Term, the Court has issued several important decisions. Many states will be directly affected by Department of Commerce v. U.S. House of Representatives, 67 U.S.L.W. 4090 (decided Jan. 25, 1999), where a sharply divided Court ruled that the Census Act prohibits the use of sampling techniques in the decennial census for the purpose of apportioning Representatives in Congress, although such techniques are permissible for other purposes.1 The Department of Commerce had proposed an elaborate plan for sampling to supplement the actual count of the population in the year 2000, in order to correct undercounting in certain segments. Section 141 of the Census Act, enacted in 1976, authorized "the use of sampling procedures and special surveys" in the decennial census. At the same time, section 195 was amended to "authorize the use of the statistical method known as 'sampling'," "[e]xcept for the determination of population for purposes of apportionment of Representatives in Congress among the several States." As Justice O'Connor, writing for the Court, read it, the section "maintains its prohibition on the use of statistical sampling in calculating population for purposes of apportionment." Justice Scalia, in a concurring opinion joined by Justice Thomas and, in part, by the Chief Justice and Justice Kennedy, doubted whether the constitutional requirement of "actual Enumeration" (Art. I, § 2, cl. 3) could be satisfied by statistical sampling. Justice Breyer, dissenting, thought that section 195 bars statistical sampling only as a substitute for traditional enumeration methods, not as a supplement, which was what had been proposed. Justice Stevens, joined in dissent by Justices Souter and Ginsburg and, in part, by Justice Breyer, thought that section 141(a) of the Census Act "gives the Secretary unqualified authority to use sampling procedures when taking the decennial census." Other decisions of interest to our readers follow. Fourth Amendment In Minnesota v. Carter, 67 U.S.L.W. 4017 (decided Dec. 1, 1998), 2 police officer James Thielen, acting on a tip from an informant, had looked through a gap in a window of a groundfloor apartment occupied by one Thompson and observed respondents Carter and Johns putting a white powder into bags. When Carter and Johns left the building, Thielen stopped their car and arrested them. The police later found pagers, a scale, and 47 grams of cocaine in plastic sandwich bags in the car. Carter and Johns were charged with conspiracy and abetting a controlled substance crime. The Court held that the evidence should not have been suppressed on the ground that Thielen's initial observation was an unreasonable search. Chief Justice Rehnquist's opinion for the Court, citing Rakas v. Illinois, 439 U.S. 128 (1978), held that "an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not." Respondents had "no legitimate expectation of privacy in the apartment, so any search did not violate their Fourth Amendment rights." Accordingly, it was not necessary to decide whether the officer's observation constituted a "search." Justice Scalia, joined by Justice Thomas, concurred in the decision, but thought that a "legitimate expectation of privacy" was relevant only to the question whether a search is unreasonable-not to whether a search has occurred. Justice Kennedy, in a separate concurring opinion, thought the homeowner's right to privacy was not involved, and there is no right to a privacy interest in the house of another. Justice Breyer concurred on the ground that the officer's observation was not a "search." Justice Ginsburg, joined by Justices Stevens and Souter, dissented, believing that "[t]hrough the host's invitation, the guest," whether short or long term, "gains a reasonable expectation of privacy in the home." The respondent in Knowles v. Iowa, 67 U.S.L.W. 4027 (decided Dec. 8, 1998), had been stopped for speeding and issued a citation. The officer conducted a full search of the car, where he found a bag of marijuana and a pot pipe. A unanimous Court held that the evidence should have been suppressed, because the search was not "incident to arrest." Chief Justice Rehnquist's opinion for the Court noted that the justifications for a search "incident to arrest"-concern for the officer's safety, or for the destruction or loss of evidence-did not apply. Elections Buckley v. American Constitutional Law Foundation, 67 U.S.L.W. 4043 (decided Jan. 12, 1999), concerned Colorado's law that lets its citizens make laws directly through initiatives on the election ballot. The Tenth Circuit struck down three requirements of the law: (1) that petition circulators be registered voters in Colorado; (2) that each petition circulator wear an identification badges showing his or her name; and (3) that proponents of the initiative report the names and addresses of all petition circulators and the amounts they were paid. The Supreme Court affirmed. Justice Ginsburg wrote the Court's opinion. The requirement that petition circulators be registered voters decreases the pool of persons available for that task, imposing an unjustified burden on speech. Moreover, the choice not to register may implicate political thought and expression. In any event, other provisions of the law provide sufficient safeguards by requiring petition circulators to be eligible to vote, and to furnish their names and addresses. All the Justices agreed that the badge requirement was invalid. It "inhibits participation in the petitioning process." The law's affidavit requirement and the requirement that the petition must show the names and addresses of circulators are sufficient to identify circulators who commit misconduct. The Court saw no need for reports of the names and amounts paid to each circulator, because other provisions of the law require "[d]isclosure of the names of initiative supporters and of the amounts they have spent." These requirements satisfy the "substantial state interest" in a "control or check on domination of the initiative process by affluent special interest groups." Justice Thomas, concurring, would apply "strict scrutiny" to the challenged requirements. Justice O'Connor, joined by Justice Breyer, concurred in part. They thought it permissible to require petition circulators to be registered voters. They found this a neutral qualification which imposed no substantial burden. They also thought the disclosure provision reasonable. The Chief Justice dissented. Voting Rights Act Lopez v. Monterey County, 67 U.S.L.W. 4076 (decided Jan. 20, 1999), concerned changes in the county's scheme for electing judges. Monterey County, a "covered" jurisdiction under the Voting Rights Act, must seek preclearance of any voting changes. The State of California, which is not a "covered" jurisdiction, had mandated the change by a state law. The Court, in an opinion by Justice O'Connor, held that "the Act's preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county." Justice Kennedy, joined by the Chief Justice, concurred, agreeing with the majority "because it is clear that the state enactments requiring the voting changes at issue in fact embodied the policy preferences and determinations of the county itself." Justice Thomas, dissenting, thought section 5 of the Act required preclearance only of "those voting changes that are the direct product of a covered jurisdiction's policy choices." Due Process In American Manufacturers Mutual Insurance Co. v. Sullivan, 67 U.S.L.W. 4158 (decided Mar. 3, 1999), public officials and private insurers were alleged to have deprived plaintiffs of property in violation of the Due Process Clause by withholding payment for disputed medical treatment without notice and an opportunity to be heard. The state law had been changed to permit such withholding. The Court held, without dissent, that 42 U.S.C. § 1983 did not provide a remedy. That section "requires both an alleged constitutional deprivation 'caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State,' and that 'the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" Here, the allegedly unconstitutional conduct of a private insurer was not "fairly attributable to the State." The state "authorizes, but does not require, insurers to withhold payment for disputed medical treatment." There is no right to payment unless the employer is liable for a work related injury and the particular medical treatment is reasonable and necessary. Justice Ginsburg, concurring, thought it was not necessary to decide the "state action" question. Justice Breyer, joined by Justice Souter, concurred, with the caveat that "there may be individual circumstances" in which a person "may well possess a constitutionally protected 'property' interest" in the continuation of benefits. Justice Stevens, concurring in part, thought that the state procedures must be fair, whether or not the insurance company is a state actor. Individuals with Disabilities In Cedar Rapids Community School District v. Garret F., 67 U.S.L.W. 4165 (decided Mar. 2, 1999), the Court held the Individuals with Disabilities in Education Act (IDEA) required the school to provide necessary nursing services to a ventilator-dependent student. Although the student required full-time nursing attendance, the services were not "medical," because they could be performed by a nondoctor. Justice Thomas, joined by Justice Kennedy, dissented because the "school nurse cannot provide the services that respondent required . . . and continue to perform her normal duties." Taxation In Arizona Department of Revenue v. Blaze Construc-tion Co., 67 U.S.L.W. 4156 (decided Mar. 2, 1999), the Bureau of Indian Affairs had contracted with Blaze, which had been incorporated under the laws of the Blackfeet Tribe of Montana and was owned by tribe members, to build, repair, and improve roads on Indian reservations-but not on Blackfeet reservations-in Arizona. Arizona sought to recover a transaction privilege tax levied on the gross receipts of companies doing business in the state. The Supreme Court, reversing the Arizona Supreme Court, upheld the tax against a claim of preemption. Justice Thomas's opinion for the Court followed the decision in United States v. New Mexico, 455 U.S. 720 (1982), which held that the state may impose a nondiscriminatory tax on a private company's contracts with the federal government. The same rule applies when the services are rendered on a federal reservation. In South Central Bell Telephone Co. v. Alabama, 67 U.S.L.W. 4186 (decided Mar. 23, 1999), the Court held, unanimously, in an opinion by Justice Breyer, that the Commerce Clause was violated by the state's franchise tax on foreign corporations. Each domestic corporation had to pay a tax of 1 percent of the par value of its stock. A foreign firm had to pay .3 percent of the value of the actual amount of capital employed in Alabama. Domestic firms were able to control the amount of their tax by adjusting the par value of their stock; foreign firms did not have that option. The average domestic corporation paid about one-fifth of the tax it would have paid if it were a foreign corporation. Endnotes 1. President Clinton had vetoed an amendment to the Census Act, passed by Congress in 1997, which would have made this prohibition crystal clear. The amendment provided: "no sampling or any other statistical procedure, including any statistical adjustment, may be used in any determination of population for purposes of the apportionment of Representatives in Congress among the several States." 2. The decision is discussed in the ABA JOURNAL, February 1999, at 32. Beate Bloch is a legal writing consultant in Washington, D.C. State & Local Law News home page | Table of Contents