Federal Legislative, Regulatory, and Legal Update

Supreme Court Update
NLC-RISC
Lisa Soronen, State and Local Legal Center
lsoronen@sso.org
This Term is Different for Local Government
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In only one case is a local government a party (4-6 more typical)
Just two Fourth Amendment cases; I won’t talk about either
Six “big” cases (normally 2-3)
Three of these cases affect local governments
Justice Scalia’s death has already and will continue to impact cases this term
This Term is Different for Insurers
•  Tons of case that affect the scope of legal liability for local governments
•  Not just your typical employment and qualified immunity cases
•  How to label these cases?
•  Civil procedure
•  Access to the courts
•  Court jurisdiction
Death of Justice Scalia
•  How does it affect local government?
•  Conservatives good
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Local control
Qualified immunity
Employment
Religion in public spaces
•  Conservatives bad
•  Land use
•  Tax
•  Free speech
Death of Justice Scalia
•  His idiosyncrasies
•  Originalism and textualism are a mixed bag
•  Varied on the Fourth Amendment
•  Liked guns
•  Conservative on social issues
•  Hated the EPA
Who is Merrick Garland?
•  He is seen as:
•  Moderate, uncontroversial (left of Kennedy; right of Breyer)
•  Anti-gun
•  Pro-prosecution
•  Pro-labor
•  Pro-agency deference (i.e. environmental regulation)
•  Limited record on social issues (death penalty, abortion)
Will He be Confirmed?
•  Nothing will happen until after the election
•  If a Republican wins, he has no chance
•  If Hillary wins
•  Will President Obama pull the nomination to allow Hillary to have her pick?
•  From a Senate Republican’s perspective, Judge Garland starts looking really good:
•  The only thing worse than giving Obama the nominee is giving it to Hillary
•  Hillary’s pick will be younger and more liberal
Don’t Forget the Big Picture
•  Ginsburg—83
•  Kennedy—79 (same age as Justice Scalia)
•  Breyer—77
What Happens to the Undecided Cases?
•  Business as usual; but decided with 8 Justices
•  EXCEPT 4-4
•  Rehear
•  Affirm by an equally divided Court; not precedential—generally leaves a circuit split
which is weird
•  Decide narrowly to avoid 4-4
•  Court has issued (at least) three 4-4 decisions
Friedrichs v. California Teacher Association
•  (Was) one of the biggest cases of the term generally and for local
government (in years?)
•  Outcome was practically inevitable
•  Justice Scalia’s death changed everything
Friedrichs v. California Teacher Association
•  About half the states are “right to work”
•  If employees don’t want to join the union they don’t have to and don’t have to pay a
dime
•  In “agency fee”/”fair share” states if employees don’t join the union, they
still have to pay their “fair share” of collective bargaining costs
•  Friedrichs could have made all states right to work for public sector employees
Friedrichs v. California Teacher Association
•  Constitutionality of fair share established in 1977 in Abood v. Detroit Board of
Education
•  Recently, Justices Kennedy and Scalia joined two 5-4 decisions critical of
Abood
•  Before Justice Scalia died, it seemed very likely that the Court would have
overturned Abood
•  Court issued a 4-4 opinion affirming the lower court’s refusal to overrule
Abood
Decided Cases
Mullenix v. Luna
•  Deadly force qualified immunity case
•  Police get qualified immunity unless their use of force was “clearly
unreasonable”
•  Lower court denied qualified immunity to the officer
•  Supreme Court reversed 8-1
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Mullenix v. Luna
•  You can’t make this stuff up
•  Leija led officers on an 18-minute chase at speeds between 85 and 110 miles an hour
•  Called police twice saying he had a gun and would shoot police officers if they did not
abandon their pursuit
•  While officers set up spike strips under an overpass, Officer Mullenix asked his supervisor
via dispatch if he thought shooting at Leija’s car to disable it was “worth doing”
•  His supervisor told Mullenix to wait to see if the spike strips worked (Court assumed
Mullenix heard his supervisor)
•  Mullenix learned an officer was in harm’s way from Leija beneath the overpass
•  Mullenix shot at Leija’s vehicle six times, killing him but not disabling his vehicle
Mullenix v. Luna
•  The Fifth Circuit denied qualified immunity
•  Police officers may not use deadly force against a fleeing felon who does not pose a
sufficient threat of harm to the officers or others
•  SCOTUS: too general of an inquiry
•  “In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding
capture through high-speed vehicular flight, who twice during his flight had threatened
to shoot police officers, and who was moments away from encountering an officer at
Cemetery Road. The relevant inquiry is whether existing precedent placed the
conclusion that Mullenix acted unreasonably in these circumstances ‘beyond debate.’”
Mullenix v. Luna
•  Sotomayor dissent
•  No training
•  No supervisor approval
•  Spike strips seconds later
Mullenix v. Luna
•  Legally interesting
•  Qualified immunity question should be narrow and fact-driven
•  Culturally interesting
•  Post-Ferguson SCOTUS isn’t loosening up qualified immunity?
•  IMLA didn’t file an amicus brief
•  Officer ignored his supervisor
•  Local governments have only “lost” one qualified immunity case in a decade
Heffernan v. City of Paterson, New Jersey
•  One case with a city as a named party
•  Issue: May a government employer’s mistaken belief that an employee
exercised his or her First Amendment rights be the basis for a First
Amendment retaliation lawsuit?
•  Supreme Court yes: 6-2
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Heffernan v. City of Paterson, New Jersey
•  You can’t make this stuff up:
•  Police officer works in police chief ’s inner circle
•  Police officer picks up campaign sign for mayor’s opponent
•  Gets caught talking to opponent’s campaign manager
•  Gets removed from inner circle
•  Sign not for himself…for bedridden mother!
Heffernan v. City of Paterson, New Jersey
•  First Amendment generally protects public employees who
support political candidates
•  Officer Heffernan’s position
•  I wasn’t supporting a political candidate; I was merely wrongly perceived
as doing so
Heffernan v. City of Paterson, New Jersey
•  The question in this case is whether the First Amendment right focuses upon
the employee’s activity or the supervisor’s motive
•  Court: supervisor’s motive
•  Supervisor’s motive here was to violate the First Amendment
Heffernan v. City of Paterson, New Jersey
•  Thomas and Alito (dissent)
•  Public employees have no remedy against public employers who attempt but fail to
violate employees’ constitutional rights
•  “Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is
not unconstitutional.”
Heffernan v. City of Paterson, New Jersey
•  View of Paterson attorney before oral argument
•  Doctrinally I win
•  I could win against nine computers
•  Bad facts make bad law?
•  This issue could never have come to the Court with good facts
•  Case is narrow
•  Don’t let this case keep you up at night
Franchise Tax Board of California v. Hyatt
•  If a city gets sued out-of-state that state court must offer the city the same
immunities the state court offers to its own state and local governments
•  6-2 decision
•  Full Faith and Credit Clause case: states must respect the laws of other states
•  Best illustrated by the facts of the case
Franchise Tax Board of California v. Hyatt
•  Gilbert Hyatt said that he moved to Nevada in September 1991
•  California’s Franchise Tax Board (CFTB) claimed that Hyatt moved to
Nevada in April 1992 and owed California more than $10 million in taxes,
penalties, and interest
•  Hyatt sued CFTB in Nevada state court alleging invasion of privacy, fraud,
and intentional infliction of emotional distress, among other claims, related
to what he described as abusive audit and investigation practices
Franchise Tax Board of California v. Hyatt
•  Had this case been heard in California state court, CFTB would have been
totally immune from liability under California law
•  In 2003 in Franchise Tax Board of California v. Hyatt, the Supreme Court held
that the Full Faith and Credit Clause does not require Nevada to offer CFTB
the full immunity that California law provides
Franchise Tax Board of California v. Hyatt
•  A Nevada jury ultimately awarded Hyatt nearly $500 million in damages and
fees
•  The Nevada Supreme Court refused to apply Nevada’s $50,000 statutory cap,
which applies to Nevada state and local governments, to damages related to
Hyatt’s fraud claim
•  CFTB claimed this refusal violates the Full Faith and Credit Clause
•  Supreme Court agreed
Tyson Foods v. Bouaphakeo
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Class action case
How often are local governments subject to class action lawsuits?
If they are, it will probably be an FLSA claim
First big case following Wal-Mart v. Dukes (2011)
Tyson Foods v. Bouaphakeo
•  To bring a class action, “questions of law or fact common to class members
[must] predominate over any questions affecting only individual members”
•  Tyson Foods failed to keep records of the time pork processing employees
spent donning and doffing
•  Could employees use “representative evidence” put together by an industrial
relations expert averaging donning and doffing time by position based on
744 videotaped observations to prove class-wide liability?
Tyson Foods v. Bouaphakeo
•  If each class member could have relied on a representative sample to
establish liability in an individual lawsuit that sample may be relied on to
prove class wide liability
•  Each individual class member would need to cite this representative sample
in an individual case
•  Court distinguishes Wal-Mart v. Dukes
Undecided Cases
CRST Van Expedited v. EEOC
•  Title VII allows prevailing employers in frivolous Title VII employment
discriminations lawsuits to collect a reasonable attorney’s fee
•  The Equal Employment Opportunity Commission brings lawsuits on behalf
of aggrieved employees
•  But before doing so it has a statutory obligation to investigate, find
reasonable cause the employer violated Title VII, and conciliate the dispute
•  What if EEOC fails to do so and the court dismisses the case against the
employer?
CRST Van Expedited v. EEOC
•  Evidence suggests EEOC is pursuing more class-based and pattern-orpractice discrimination litigation and isn’t investigating cases thoroughly and
engaging in conciliation
•  A ruling against EEOC will likely change this practice
McDonnell v. United States
•  How broad are federal bribery statutes?
•  Public officials may not take “official action” in exchange for something of
value
•  Governor McDonnell: I didn’t do enough to help someone who gave me a
lot of money to be guilty of bribery (no official acts)
McDonnell v. United States
•  McDonnell accepted more than $175,000 in money and luxury goods from
Jonnie Williams
•  Williams wanted a Virginia state university to test a dietary supplement his
company, Star, had developed
•  McDonnell argues that “provision of mere ‘access’ or conferral of
amorphous reputational benefits”—which is all he did—isn’t “official
action.” And if it is, “every elected official and campaign contributor [will be]
a target for investigation and indictment.”
McDonnell v. United States
•  Alleged official acts:
•  Asking his Secretary of Health to send an aide to meet Mrs. McDonnell and Williams about clinical
trials at two Virginia universities
•  Attending a lunch at the Executive Mansion arranged by Mrs. McDonnell where Star gave $200,000 to
Virginia universities to prepare research proposals
•  Sending his legal counsel an email to “see him” about the universities not returning Star’s phone calls
•  Introducing one of Williams’ associates, a prominent doctor, at a “Healthcare Leaders” reception at the
Executive Mansion organized by Mrs. McDonnell
•  During a meeting about Virginia’s state-employee health plan he consumed one of the supplements and
noted that it had been working well for him (implying that it should be covered by the health plan)
McDonnell v. United States
•  Human level
•  Took money for luxurious items not (mostly) to pay off debt
•  Intuitive level
•  If someone gave me $175K, I know I would have helped them get what they wanted
•  Might a jury conclude the same?
•  Legal level
•  But did Gov. McDonnell really help Williams in any meaningful way?
•  What should be the test for official acts?
Spokoe v. Robins
•  To bring a lawsuit in federal court a plaintiff must have “standing” per
Article III of the U.S. Constitution
•  To have standing the plaintiff has suffered an injury
•  Under some statutes Congress allows plaintiffs who have suffered no
concrete harm to sue based upon a mere violation of statute
•  Such plaintiffs may still be kept out of court if the Supreme Court concludes
they have no standing
Spokoe v. Robins
•  Thomas Robins sued a website operator, Spokoe, for willfully violating the
Fair Credit Reporting Act by publishing inaccurate personal information
about him
•  The only harm he alleged was that this misinformation harms his
employment prospects and causes him anxiety
•  Relevant statutes that apply to local governments: the Fair Housing Act
(FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy
Protection Act (DPPA)
Universal Health Services v. Escobar
•  The False Claims Act (FCA) allows private individuals to sue on behalf of the
United States to recover money that has been defrauded from the federal
government
•  Local governments receive (conditioned) money all the time from the federal
government
•  Local governments can be sued for making false claims
•  How often are they sued?
•  Two previous SCOTUS cases involve counties…
Universal Health Services v. Escobar
•  When is a claim false?
•  Outright theft v. did the job but did not follow all the rules
•  Local government might prefer that only claims for outright theft be
considered false claims
Universal Health Services v. Escobar
•  Girl covered by Medicaid died from seizures related to medication prescribed
by a nurse at Arbour Counseling Services
•  Parents filed a false claim under Medicaid
•  Nurse wasn’t being supervised by a board certified psychiatrist, as required by
state regulation, among many other violations
•  Arbour responds—essentially—that it did the work and just didn’t disclose it
was violating program requirements
Dollar General v. Mississippi Band of Choctaw
Indians
•  May nonmembers of Indian tribes (including local governments) be sued in tribal
court (as opposed to state or federal court) for tort (civil wrongdoing) claims?
•  In Montana v. United States (1981), the Court held that generally nonmembers may
not be sued in tribal court except that “tribe[s] may regulate, through taxation,
licensing, or other means, the activities of nonmembers who enter consensual
relationships with the tribe or its members through commercial dealing”
•  The question in this case is whether “other means” includes suing nonmembers for
civil tort claims in tribal court
Future SLLC Events
•  10 Years of the Roberts Court for State and Local Government
•  May 11