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State & Local News Vol. 23, No. 2, Winter 2000 SUPREME COURT WATCHBy L. Anthony SutinThe October 1999 Term of the U.S. Supreme Court promises to deliver several decisions of major importance to state and local governments, with particular focus on the topics of federalism and the First Amendment. Federalism In November, the Court heard argument in Condon v. Reno, No. 98-1464, 68 U.S.L.W. 3163, a challenge to the constitutionality of the Driver's Privacy Protection Act (DPPA). The DPPA was passed as part of the 1994 Crime Bill, in response to concerns that stalkers had obtained personal information from driver's license records to find people with unlisted addresses and telephone numbers. The law restricts the disclosure and commercial sale of information given to state departments of motor vehicles by applicants for driver's licenses. A divided Fourth Circuit found that the law impermissibly infringed on state sovereignty. The Supreme Court will consider whether the law is a valid exercise of congressional power under the Commerce Clause or the Fourteenth Amendment, or whether it offends Tenth Amendment principles as articulated under the Court's prior decisions in New York v. United States and Printz v. United States. Skeptics of the law suggest that states should be free to set up their own rules and systems to protect privacy, and there is no justification for federal intervention into this area of traditional state regulation. Perhaps anticipating an adverse ruling, Congress has since moved to tie federal grant money to states' compliance with the DPPA provisions, invoking the Spending Clause power that provides more latitude for federal legislative action. The high court also will hear argument in two cases that will revisit the limits of the legislative power of Congress under the Commerce Clause. The 1995 decision in Lopez v. United States, invalidating the Gun-Free School Zones Act, represented the Court's first limitation of Commerce Clause authority since the New Deal era. The Court now will consider whether the Violence Against Women Act (VAWA), 42 U.S.C. § 13981, which creates a cause of action against anyone "who commits a crime of violence motivated by gender, exceeds the bounds of congressional power under the Commerce Clause and under § 5 of the Fourteenth Amendment. Brzonkala v. Morrison, No. 99-5, and United States v. Morrison, No. 99-29, 68 U.S.L.W. 3175. Petitioner Christy Brzonkala, a student at Virginia Tech, pursued a VAWA cause of action against two college football players that she alleged had raped her. The Fourth Circuit invalidated the law, rejecting claims that the exercise of federal legislative power was appropriate in light of the effects on interstate commerce from gender-motivated violence through the imposition of medical and legal costs on victims, inhibited travel by those who fear violence, and lessened productivity. The appellate court described VAWA as "a sweeping intrusion" into matters traditionally handled by the states. More recently, the Court has added to the Fall Term line-up the case of Jones v. United States, No. 99-5739 (68 U.S.L.W. 3321), which presents the question whether the federal arson statute (18 U.S.C. § 844(i)) as applied to the arson of a private residence is a permissible exercise of the Commerce Clause. The subject of Eleventh Amendment sovereign immunity that occupied so much of the Court's attention in recent terms returns to the docket this fall. In Kimel v. Florida Board of Regents, No. 98-791, 68 U.S.L.W. 3279, the Court will decide whether state employees are able to maintain suits under the Age Discrimination in Employment Act in federal court. Petitioner Kimel and colleagues are faculty members at Florida State University and Florida International University who did not receive pay raises when younger colleagues did. A divided Eleventh Circuit concluded that state governments are immune from these suits, relying on the Court's 1996 decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, that defined the circumstances under which Congress had power to abrogate state sovereign immunity. The qui tam provisions of the False Claims Act authorize private individuals to bring suit against persons believed to have defrauded the federal government. Vermont Agency of Natural Resources v. United States, No. 98-1828, 68 U.S.L.W. 3164, will determine whether states are "persons" that can be sued and, if so, whether the Eleventh Amendment precludes suit against a nonconsenting state. A divided Second Circuit answered yes and no, respectively. First Amendment Campaign finance reform is the subject of Nixon v. Shrink Missouri Government PAC, No. 98-963, 68 U.S.L.W. 3239. A Missouri law limits contributions to candidates for statewide and certain other offices. The original contribution limit was $1,000 for statewide offices, with an adjustment for inflation to a current limit of $1,075. The Eighth Circuit held that these contribution limits were impermissible under the First Amendment. The Court's landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976), upheld $1,000 per election contribution limits to candidates for federal office against a First Amendment challenge. The Nixon case may serve as a vehicle for the Court to revisit the Buckley conclusions. The controversial subject of the permissible scope of prayer in the public schools will be revisited in Santa Fe Independent School District v. Doe, No. 99-62, 68 U.S.L.W. 3321. This school district has a policy of permitting student-led and student-initiated prayer over a public address system at high school football games. The Court will consider whether this level of religious activity violates the Establishment Clause. The Fifth Circuit found that the prayers were unconstitutional, and distinguished football games and athletic events from graduations, at which student-initiated prayer is sometimes allowed because of their "singularly serious nature." The Supreme Court declined to consider the issue of the prayers at graduation ceremonies. Texas Governor George W. Bush has called upon the Court to overturn the ruling, and a resolution passed by the U.S. House of Representatives also expresses dismay. The location of the Establishment Clause line in the provision of assistance to religious schools will be examined in Mitchell v. Helms, No. 98-1648, 68 U.S.L.W. 3164. Jefferson Parish, Louisiana, loans state-owned instructional equipment, computers, software, and library books to sectarian and public schools alike, using resources provided by the Elementary and Secondary Education Act. The appeals court found that this type of assistance was impermissible, distinguishing the resources from textbooks that can be lent to parochial schools under prior Supreme Court precedent. A Colorado statute establishing an eight-foot floating buffer zone within the 100-foot radius of health care facility entrances (principally affected are abortion clinics) and prohibiting within those zones any person from "knowingly approach[ing]" another nonconsenting person for the purpose of counseling will be considered in Hill v. Colorado, No. 98-1856, 68 U.S.L.W. 3176. The First Amendment issues presented include whether the statute unconstitutionally burdens protected expression in a traditional public forum (sidewalks and streets), whether the law is a prior restraint, and whether the law improperly gives discretion to passersby in public places to act as "censors" of speech. The effort by the City of Erie, Pennsylvania, to curb nude dancing by prohibiting a public appearance in a "state of nudity" is the subject of Erie, Pa. v. Pap's A.M., No. 98-1161, 68 U.S.L.W. 3162. The Court will assess whether the ordinance was drawn sufficiently narrowly to further legitimate governmental interests without burdening protected expression. The Pennsylvania Supreme Court said that "requiring a dancer in a legal establishment to wear pasties and a G-string before appearing on stage" would not serve the governmental end of preventing rape, prostitution, and other sex crimes. Another case to be considered by the Court deals with the intersection of state law and privacy concerns. The Court will decide the case of Los Angeles Police Dep't v. United Reporting Publishing Co., No. 98-678, 68 U.S.L.W. 3303, which considers the constitutionality of a California statute that permits law enforcement agencies to release certain arrest information to third parties for a "scholarly, journalistic, political, or governmental purpose," but not for purposes of directly or indirectly selling a product or service. The 1996 statute responds to concerns about the use of the data by lawyers and others to solicit business. The respondent, United Reporting, had published a "JAILMAIL" list for its clients. The Court will decide whether this law, and perhaps the many other federal and state laws that restrict access to government records for commercial purposes, conflicts with the First Amendment. The Ninth Circuit concluded that the statute violated commercial speech rights; other circuits have reached opposite conclusions on similar statutes. Does the First Amendment permit a state university to allocate mandatory student activities fees to political and ideological organizations over the protest of students who object to subsidizing the activities of those groups? The answer will be provided in Board of Regents of University of Wisconsin System v. Southworth, No. 98-1189, 68 U.S.L.W. 3164. The Seventh Circuit Court of Appeals held that the university's mandatory student fee policy cannot stand: "Funding of private organizations which engage in political and ideological activities is not germane to a university's educational mission, and even if it were, there is no vital interest in compelled funding." Criminal Law Bryan v. Moore, No. 99-6723, presents the issue of whether Florida's electric chair presents a risk of "physical violence, disfigurement and torment" as to amount to cruel and unusual punishment under the Eighth Amendment. The Florida Supreme Court has upheld use of the electric chair three times. Its most recent 4-3 decision in the Bryan case brought a strongly worded dissent by Justice Leander J. Shaw, Jr. "Execution by electrocution-with its attendant smoke and flames and blood and screams-is a spectacle whose time has passed," he wrote. Justice Shaw's appended photographs of an execution has drawn huge numbers of people to the Florida Supreme Court's Internet website. The nation also awaits the Court's decision on whether to hear the case of United States v. Dickerson, No. 99-5525. This case asks if the famous "Miranda warnings" are constitutionally required, or whether a voluntary confession can be admitted in evidence in the absence of the warnings. A federal statute, 18 U.S.C. § 3501, enacted in 1968 with the intent to overturn the Miranda decision, authorizes the admission of a voluntary custodial statement. The U.S. Department of Justice rarely invoked the statute and now formally has taken the position that Miranda enjoys a constitutional footing. Municipal Services and Employment Voting Rights An unanswered question carried over from last Term about the scope of the section 5 preclearance inquiry under the Voting Rights Act will be taken up again in the cases of Reno v. Bossier Parish, La., School Board, No. 98-405, and Price v. Bossier Parish, La., School Board, No. 98-406, 68 U.S.L.W. 3161. The Court will decide whether a redistricting plan for the election of members of a school board merits preclearance where there is no retrogressive intent but it is asserted that there nevertheless is a discriminatory purpose. A three-judge court had granted preclearance. L. Anthony Sutin is an assistant professor of law, Appalachian School of Law, Grundy, Virginia.
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