Mid-Term Review



Supreme Court cases this term hold less importance to states than in previous years.

By Lisa Soronen and Victor Kessler

The biggest cases the Supreme Court will decide this year—a challenge to the president’s recess appointment power, a campaign finance case, and a challenge to the Affordable Care Act’s contraception mandate—aren’t as far-reaching as the big cases of the recent past. But even though they won’t have a great impact on states, the docket is interesting.

Since the magazine previewed Supreme Court cases in the October/November 2013 issue, the court has ruled in one case and accepted another Clean Air Act case, a public employee free speech case, and another Fourth Amendment search case.

By March 1, the court had issued just one opinion in cases affecting states. In Sprint Communications Company v. Jacobs, the court ruled that a federal court should not have abstained from deciding a case challenging a decision by the Iowa Utilities Board because it was also being challenged in a state court. Sprint had contested a decision by the utility board in federal and state courts simultaneously.

The Supreme Court, in a unanimous opinion, ruled proceedings such as the utility board do not “resemble ... state enforcement actions,” which do warrant abstention, because they were not “akin to criminal prosecution” and were not initiated by the state. The high court also said that a previous court decision (Younger) applies to only three “exceptional circumstances.” The State and Local Legal Center filed an amicus brief in this case.

Can the federal government use a treaty to prosecute an assault case?

The question relevant to states in Bond v. United States is whether the federal government can prosecute an individual under a statute implementing a treaty that it would not otherwise have the authority to enact. Upon discovering her best friend was pregnant with her husband’s child, Carol Anne Bond, a biochemist, acquired toxic chemicals from her workplace and Amazon and spread them on her friend’s mailbox, door and car handles a total of 24 times over half a year. Her friend repeatedly contacted the police, who did nothing about the situation. But when she mentioned to the post office that the chemicals were being spread on her mail box, postal inspectors set up video cameras and caught Bond in the act. Since a federal agency can’t charge someone with attempted murder or assault, it indicted Bond for violating an international chemical weapons treaty which makes it a crime to use a toxic chemical for anything other than a peaceful purpose. While Bond concedes the treaty is valid, she argues the indictment violates the 10th Amendment because states—not the federal government—typically punish assaults.

Missouri v. Holland, decided nearly 100 years ago, however, states Congress may implement a valid treaty even if it would otherwise be unable to enact legislation in that area. The Supreme Court may avoid the question of whether Missouri v. Holland should be limited or overruled by deciding Bond’s use of the chemicals didn’t violate the federal statute. She argues the statute does not apply to “conduct that no signatory state could possibly engage in—such as using chemicals in an effort to poison a romantic rival.”

Does the EPA have the authority to regulate greenhouse gases emitted from stationary sources?

In 2007 in Massachusetts v. EPA, the Supreme Court ruled that the EPA has the authority to regulate the emissions of greenhouse gases from new motor vehicles under the Clean Air Act. The question in Utility Air Regulatory Group v. EPA is whether the agency may regulate greenhouse gases emitted from stationary sources, like power plants and factories, too.

The D.C. Circuit concluded that the EPA does have the authority, because in Massachusetts v. EPA the court determined that the Clean Air Act’s overarching definition of “air pollutant” may include greenhouse gases. The EPA significantly increased the amount of greenhouse gases that will initially require permitting because otherwise millions of stationary sources would need permits.

States will be affected either way this case is decided because they issue permits and own stationary sources that emit greenhouse gases, on one hand, and they would benefit from reduced greenhouse gases emissions, on the other.

Are public employees’ First Amendment rights protected when testifying before a grand jury?

In the 2006 case of Garcretti v. Ceballos, the court ruled that when an employee speaks as part of his or her official job duties that person is not acting as a private citizen and therefore isn’t protected by the First Amendment. In Lane v. Franks, Edward Lane is asking the court to make an exception for subpoenaed testimony. Lane claims he was laid off because he testified under subpoena before a grand jury and at a federal criminal trial that a state legislator employed by his program didn’t do any work.

The 11th Circuit found Lane was acting in his official job duties when he testified and therefore his speech wasn’t protected by the First Amendment. Other circuits have disagreed, reasoning that public employees have obligations as citizens to testify truthfully independent of their public employment. Garcetti, decided 5-4, was a big win for public employers. This is the court’s first opportunity to narrow or affirm Garcetti. 

Do police officers have qualified immunity when using force?

Police officers shot and killed Donald Rickard and his passenger after Rickard led them on a high-speed chase. Their families sought money damages, claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because the level of force they used wasn’t prohibited by clearly established law.

In Plumhoff v. Rickard, the court will decide whether the lower court properly denied qualified immunity by comparing this case, which arose in 2004, with a later Supreme Court decision from 2007. The court also will decide whether qualified immunity should be denied based on the facts of this case. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer.

State governments will benefit from clarity the Supreme Court will provide on the boundaries of both qualified immunity and the “hot pursuit” doctrine. The State and Local Legal Center has filed an amicus brief in this case.

Does the Secret Service have qualified immunity when dealing with protesters?

In Wood v. Moss, demonstrators for and against President George W. Bush had equal access to him as his motorcade arrived in Jacksonville, Ore. But when the president made an unexpected stop for dinner, Secret Service agents moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block farther from the president than the pro-Bush demonstrators. The anti-Bush protesters sued two Secret Service agents claiming they violated their First Amendment rights by discriminating against them because of their political viewpoint. The Ninth Circuit denied the agents qualified immunity.

The Supreme Court will decide whether the lower court evaluated the qualified immunity question in this case too generally. The 9th Circuit focused on its conclusion that the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the president than the pro-Bush demonstrators.

The court will also decide whether the anti-Bush protesters have adequately claimed viewpoint discrimination when there was an obvious security-based rationale for moving them: They were closer to the president. The State and Local Legal Center has filed an amicus brief in this case.

Who owns abandoned railroad rights-of-way?

In Marvin M. Brandt Revocable Trust v. United States, the court’s decision will affect “Rails-to-Trails,” where state and local governments convert abandoned railroad corridors into recreational trails. The question in this case is who owns an abandoned railroad right-of-way: the United States or a private land owner living next to the right-of-way?

In 1908, the United States granted a railroad company a right-of-way to build a railroad over public land pursuant to the General Railroad Right of Way Act of 1875. In 1976, the predecessor to the Marvin M. Brandt Revocable Trust bought land surrounding part of this railroad right-of-way. In 2004, the railroad abandoned the right-of-way. The trust argued that it owns the abandoned right-of-way. The 10th Circuit disagreed, concluding that a number of federal statutes provide that the United States retains a “reversionary interest” in General Railroad Right of Way Act of 1875 rights-of-way.

If the Supreme Court agrees with the 10th Circuit, state governments will benefit. A federal statute, if applicable, grants the United States title to abandoned railroad rights-of-way unless a “public highway,” which includes recreational trails, is established on the right-of-way within one year of abandonment. Just before the magazine went to press, the Supreme Court ruled in favor of the landowner.

Are false statement laws constitutional?

Susan B. Anthony List v. Driehaus involves a First Amendment challenge to a state statute prohibiting false statements against candidates for office. The Susan B. Anthony List wanted to run a billboard criticizing a congressman for supporting tax-payer funded abortions by voting in favor of the Affordable Care Act.

A panel of the Ohio Elections Commission found probable cause that this billboard would violate Ohio’s false-statement statute and referred the matter to the full commission, but the hearing never took place because the congressman lost the election. SBA List sued the commission claiming that its proceedings chilled First Amendment protected speech and association rights. SBA List wants the Supreme Court to adopt a test that makes it easier to challenge the constitutionality of false-statement laws. At least 15 states with similar laws prohibiting false statements against candidates will be affected by how the court rules in this case.

Can police search the cell phone of someone they’ve arrested without a warrant?

In Riley v. California and U.S. v. Wurie the court will decide whether the Fourth Amendment permits police, without a warrant, to search a cell phone found on a person who is arrested. The lower courts reached opposite conclusions in these cases. In Riley the California Court of Appeals concluded the warrantless search was lawful. State court precedent held that a warrantless cell phone search was permissible in an arrest if it was “personal property … immediately associated with [his] person.” In this case it was.

In Wurie, the 1st Circuit applied the two justifications for a search during an arrest articulated in Chimel v. California—officer safety and preservation of evidence—and concluded that the warrantless cell phone search violated the Fourth Amendment. The court reasoned that officer safety is irrelevant to cell phones, and it is very unlikely that cell phone data would be destroyed while officers obtain a warrant. But as the court in Wurie pointed out, smart phones are computers containing a wealth of information. It would significantly assist police officers if they could search these devices when they arrest someone without first obtaining a warrant.

How will the states fare in these cases? We’ll know by the end of June.

Lisa Soronen and Victor Kessler are with the State and Local Legal Center, which files Supreme Court amicus briefs on behalf of the Big Seven national organizations representing state and local governments.

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