Looking Back, Looking Forward –
Rulings of the U.S. Supreme Court
Other Issues for
Presented and prepared in part by Charles W. Thompson, Jr.
(IMLA Executive Director/General Counsel)
Prepared in part by Sophia M. Stadnyk
(IMLA Senior Associate Counsel) and Devala Janardan (Director
of Legal Advocacy)
International Municipal Lawyers Association (IMLA)
7910 Woodmont Ave. Suite 1440 • Bethesda, MD. 20814
www.imla.org • firstname.lastname@example.org
email@example.com • firstname.lastname@example.org
1. U.S. SUPREME COURT – DECIDED CASES
October 2009 Term
Mowhawk Industries v. Carpenter - Attorney Client Privilege and Appeals
Norman Carpenter, a former shift supervisor at a Mohawk manufacturing facility, informed a
member of Mohawk‘s human resources department in an e- mail that the company was
employing undocumented immigrants. At the time, unbeknownst to Carpenter, Mohawk stood
accused in a pending class-action lawsuit of conspiring to drive down the wages of its legal
employees by knowingly hiring undocumented workers in violation of federal and state
racketeering laws. Company officials directed Carpenter to meet with the company‘s outside
counsel who was handling the class action suit. The next day, Carpenter was fired and he sued
for wrongful termination.
After learning of Carpenter‘s complaint, the plaintiffs in the class action suit sought an
evidentiary hearing to explore Carpenter‘s allegations. In its response to their motion, Mohawk
described Carpenter‘s accusations as ―pure fantasy‖ and recounted the ―true facts‖ of Carpenter‘s
dismissal. According to Mohawk, Carpenter himself had ―engaged in blatant and illegal
misconduct‖ by attempting to have Mohawk hire an undocumented worker. The company
claimed that it ―commenced an immediate investigation‖ of Carpenter during which outside
counsel interviewed Carpenter. It then asserted that because Carpenter‘s ―efforts to cause
Mohawk to circumvent federal immigration law‖ ―blatantly violated Mohawk policy,‖ the
company terminated him.
Contemporaneously, discovery was underway in Carpenter‘s case. Carpenter filed a motion to
compel Mohawk to produce information concerning his meeting with retained counsel and the
company‘s termination decision. Mohawk maintained that the requested information was
protected by the attorney-client privilege.
The district court concluded that the attorney client privilege applied to the conversations
between outside counsel and Carpenter, but determined that Mohawk waived its privilege when
it used information from those conversations to defend itself in the class action proceedings.
Carpenter filed an interlocutory appeal and a petition for mandamus to the 11 th Circuit Court of
Appeals. That court concluded that mandamus was not available and that there was no right to
an interlocutory appeal. The Supreme Court took certiorari to remedy a split in the circuits and
to decide whether disclosure orders adverse to the attorney-client privilege qualify for immediate
appeal under the collateral order doctrine. The Court agreed with the Court of Appeals and held
that they do not. The Court reasoned that ―post judgment appeals, together with other review
mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-
In her first opinion and writing for a unanimous court 1 , Justice Sotomayor recognized that the
Court ―has long given‖ [28 U.S.C.] §1291 [the statute allowing appeals of ―final‖ judgments] a
―practical rather than a technical construction.‖ Cohen v. Beneficial Industrial Loan Corp. , 337
U. S. 541, 546, at 546 (1949). Under Cohen, the Court had concluded that §1291 encompasses
not only judgments that ―terminate an action,‖ but also a ―small class‖ of collateral rulings that,
although they do not end the litigation, are appropriately deemed ―final.‖ That small category
includes only decisions:
that are conclusive,
that resolve important questions separate from the merits, and
that are effectively unreviewable on appeal from the final judgment in the underlying
While agreeing that this case involved important questions separate from the merits and
was conclusive, Justice Sotomayor reasoned that an appellate court could correct any
error by setting aside a judgment and limiting the use of privileged information on retrial.
She also described three other ways in which a party could seek an immediate review of
a party may ask the district court to certify, and the court of appeals to accept, an
interlocutory appeal pursuant to 28 U. S. C. §1292(b)
petition the court of appeals to issue an order of mandamus, and
defy the order to disclose the privileged information and incur sanctions which could then
What about those pesky cases where politics forms the underlying basis for the suit and efforts to
embarrass may be paramount to litigation success? As an example, in Maryland after the first
Republican was elected Governor in a generation, many of the non-classified (―at will‖) office
holders lost their jobs amidst much controversy. One sued and sought to inquire about
discussions the Governor had with his attorneys about these mass firings. Maryland‘s highest
court concluded that the Governor could pursue an interlocutory appeal to protect the Governor‘s
attorney client privilege. Ehrlich v. Grove, 396 Md. 550. (2007). In Mohawk, the United States
participated as an amicus and contended that collateral order appeals should be available for
rulings involving certain governmental privileges ―in light of their structural constitutional
grounding under the separation of powers, relatively rare invocation, and unique importance to
governmental functions.‖ The Court declined to express a view on that issue.
Justice Thomas concurred.
United Student Aid Funds, Inc. v. Espinosa - Bankruptcy
Under the Bankruptcy Code, certain debts cannot be discharged. In this case, Espinosa sought to
discharge part of a student loan while repaying the remainder. Under the Bankruptcy Code a
student loan cannot be discharged except in the case of undue hardship which the court must
determine following an adversary hearing. The creditor, United Student Aid Funds, Inc. (USAF)
filed a proof of claim for the full amount, but did not file an objection to Espinosa‘s plan. The
bankruptcy court confirmed Espinosa‘s plan and subsequently Espinosa‘s trustee notified USAF
of the difference and gave it 30 days to object. USAF did not object. Espinosa subsequently paid
all of the scheduled debts and was discharged.
USAF sought to collect the additional amounts through income tax intercepts and Espinosa
sought to hold it in contempt. The bankruptcy court ruled for Espinosa and enjoined USAF from
continuing its collection efforts. On appeal to the District Court, the court reversed holding that
Espinosa had violated USAF‘s due process rights by not filing a complaint and summons to
conduct the adversary ―undue hardship‖ hearing. The 9th Circuit Court of Appeals held that the
discharge was final and that USAF should have filed an objection before the discharge became
USAF sought certiorari and it was granted. USAF argued that requiring a creditor to review a
debtor‘s plan to protect against a discharge of non-dischargeable debt imposed a substantial
burden on creditors. IMLA participated as an amicus in support of USAF‘s position to argue
that where debts due local governments are statutorily not dischargeable, a bankruptcy court‘s
discharge of those debts is void.
On March 23, the Court released a unanimous decision declaring that there is no due process
ground to reopen a judgment when a creditor receives actual notice of the discharge proceedings,
even if the student debtor fails to adhere to the bankruptcy rules requiring service of a summons
and complaint on the creditor. Importantly, for state and local government, the court in a
footnote [footnote no. 10] expressed no view on whether discharge of a non-dischargeable tax is
Graham County Soil Conservation District v. U.S. ex rel. Wilson – False Claims Act
In 2001, Karen Wilson, a secretary for the Graham County Conservation District, filed a qui
tam action against Graham County and other respondents, alleging she learned of false
claims submitted by the County to the federal government for reimbursement under
government contracts awarded in 1995. In her False Claims Act (FCA) action, Wilson
claimed, that a conspiracy existed between the government inspector and the hired
contractors, in which the inspector would approve the work and the bills for payment and
the proceeds would be split amongst them.
Some of Wilson’s allegations were already reported in a March 1996 audit that had been
prepared for Graham County. A May 1996 report prepared by the State’s Department of
Health likewise described problems with the government contracts that Wilson included in
her complaint. The FCA imposes a jurisdictional bar on certain claims that are based on
facts that have already been publicly disclosed. The district court found Wilson had based
her complaint on these state and local audit reports, and ruled that her complaint was
jurisdictionally barred because the state and county reports qualified as sources of public
disclosure under the FCA.
The County argued because its audit reported the improprieties prior to Wilson’s suit, the
courts did not have jurisdiction to hear her suit. The Fourth Circuit Court of Appeals
disagreed, finding the False Claims Act envisions only the existence of federal audits to
prevent courts from assuming jurisdiction.
The provision of the FCA at issue bars suits based on “public disclosures” – where the
federal government already knows or has the opportunity to know about fraud against it,
and thus does not need private citizens to police fraud through qui tam actions. The FCA
states no federal or state court can entertain an FCA action “based upon the public
disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a
congressional, administrative, or Government Accounting Office report, hearing, audit, or
investigation, or from the news media . . . .” 31 U.S.C. § 3730(e)(4).
The question in this case was whether the public disclosure of an “administrative . . . report,
hearing, audit, or investigation” in the second clause encompasses state and local
administrative reports, hearings, audits, and investigations. If “administrative” refers only
to the federal government, as the state and county argued and as the court of appeals ruled,
then local governments will be exposed to liability for fraud uncovered during their own
investigations. If, however, “administrative” refers to state and local governments in
addition to the federal government, qui tam actions based on such “known” information are
On March 30, the court concluded that the 4 th Circuit was incorrect and that state and local
reports and audits were included within the jurisdictional bar of Section 3730(e)(4 ). However,
this is something of a hollow victory and one with little lasting value. The FCA was amended on
March 23, 2010 as part of the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124
Stat. 119. Section 10104(j)(2). The new law clarifies that only federal reports constitute public
disclosure for purposes of the FCA.
Hemi Group, LLC. vs City of New York - RICO
The question presented in this case asks if a city government meets RICO‘s standing requirement
that a plaintiff be directly injured in its ―business or property‖ when it alleges non-commercial
injury resulting from non-payment of taxes by non- litigant third parties. Standing to bring a civil
RICO claim is defined in the statute as ―any person injured in his business or property by reason
of a violation of‖ RICO‘s criminal prohibitions. The defendants in this case argued that standing
is limited to parties to a commercial transaction and does not include damage to sovereign
interests. The Second Circuit disagreed, stating ―[w]e see no reason to import an additional
standing requirement on municipalities for RICO claims . . . we hold that lost taxes can
constitute injury to ‗business or property‘ for purposes of RICO, and conclude that the City has
adequately met this requirement notwithstanding that its injury did not arise from its
participation in a commercial transaction.‖
On January 25, New York City was handed a defeat in its effort to recoup thousands of dollars in
unpaid tobacco taxes when the Court ruled that the City co uld not use the Racketeer Influence
and Corrupt Organizations Act (RICO) to go after out-of-state on- line cigarette retailers.
The Court relied on its prior ruling in Holmes v. Securities Investor Protection Corporation , 503
U. S. 258 (1992) . In Holmes the Court explained that, to state a claim under civil RICO, the
plaintiff is required to show that a RICO predicate offense ―not only was a ‗but for‘ cause of his
injury, but was the proximate cause as well.‖ Proximate cause for RICO purposes, should be
evaluated in light of its common-law foundations; proximate cause thus requires ―some direct
relation between the injury asserted and the injurious conduct alleged.‖ A link that is ―too
remote,‖ ―purely contingent,‖ or ―indirec[t]‖ is insufficient.
The Court concluded that the City‘s theory required it to extend RICO liability to situations
where the defendant‘s fraud on the third party (the State) has made it easier for a fourth party
(the taxpayer) to cause harm to the plaintiff (the City). The Court condensed its reasoning by
saying ―Put simply, Hemi‘s obligation was to file the Jenkins Act reports with the State, not the
City, and the City‘s harm was directly caused by the customers, not Hemi. We have never before
stretched the causal chain of a RICO violation so far, and we decline to do so today.‖
The Court also noted that ―One consideration we have highlighted as relevant to the RICO
―direct relationship‖ requirement is whether better situated plaintiffs would have an incentive to
sue. See Holmes , supra, at 269–270. The State certainly is better situated than the City to seek
recovery from Hemi. And the State has an incentive to sue—the State imposes its own $2.75 per
pack tax on cigarettes possessed within the State, nearly double what the City charges. N. Y. Tax
Law Ann. §471(1) (West Supp. 2009).‖ The Court hedged its opinion by saying that it did not
express a view as to whether the State could bring a RICO case for the lost taxes.
City of Ontario v. Quon – Fourth Amendment
Both on duty and off duty, Ontario Police Department SWAT team Sergeant Jeff Quon chose to
use his Department- issued text- messaging pager to exchange hundreds of personal messages
with, among others, his wife (Jerilyn Quon, a former Department employee), his girlfriend (April
Florio, a Department dispatcher), and a fellow SWAT team sergeant (Steve Trujillo, who also
used a Department- issued pager). The City of Ontario had a written policy warning that
employee e- mails were not private, could be audited by the Department, and were subject to
public disclosure. When the City obtained the pagers for its SWAT team to facilitate logistical
communications, it told the officers that the e-mail policy applied to pager messages.
The City‘s contract with its wireless provider, Arch Wireless, Inc., imposed a monthly character
limit on each pager, after which the City had to pay extra for overages. Certain officers, one of
them Sergeant Quon, substantially exceeded the monthly character limit, a limit which the City
had already increased once before. The police chief therefore ordered a review of the transcripts
for those pagers. The transcripts revealed that during the month under review, Sergeant Quon
sent and received a total of 456 personal messages during his normally scheduled workdays and
that, on average per shift, he would send and receive 28 messages, only 3 of which would be
business related. Quon and several of the message recipients sued, claiming that the City
violated the Fourth Amendment and that the City a when the police department reviewed the
content of Quon‘s text messages. They also claimed that the City and the company violated the
Stored Communications Act, 18 U.S.C. §§ 2701-2711 (1986) (―SCA‖) when the company
allowed the City access to the content of those messages. The District Court ruled in favor of the
City and its employees.
On appeal, the 9th concluded that Sergeant Quon had a reasonable expectation of privacy in the
text messages he sent and received on his department-issued text pager even though the
text pagers and even though the City‘s written policy warned that emails could be made public.
Despite these factors, the panel held that Sergeant Quon had a reasonable expectation of privacy
because a police lieutenant had advised him of an ‗informal policy‘ of allowing officers to go
over the monthly character limit under the city‘s contract with its wireless provider as long as the
officers agreed to pay for any overages. The court also concluded that three other plaintiffs (the
sergeant‘s wife, a fellow SWAT team officer, and a department dispatcher) who sent text
messages to the sergeant‘s department- issued pager had a reasonable expectation that the
department would not review their messages absent consent from either a sender or recipient of
the text messages. Finally, the court concluded that when the department reviewed transcripts of
the sergeant‘s text messages, which it obtained from its wireless provider, it acted unreasonably
because the court determined that the department could have employed ‗less intrusive means.‘
The court based its conclusion on United States v. Forrester, 512 F.3d 500 (9th Cir. 2008), in
which it had earlier held that the contents of e-mail messages (as opposed to the ―to/from line‖)
―may deserve Fourth Amendment protection.‖ Id. at 511 (emphasis added). In this case, the
court reasoned, ―the Department‘s informal policy that the text messages would not be audited if
he paid the overages rendered Quon‘s expectation of privacy in those messages reasonable.‖
With respect to the SCA, the Ninth Circuit agreed that Arch Wireless, but not the city, violated
the SCA. Arch Wireless and the city sought certiorari. The Court granted certiorari to the City,
but not Arch Wireless. Thus, the only issue before the Court involved whether the City‘s review
of Quon‘s messages violated the 4th Amendment. IMLA participated as an amicus in support of
On June 17, 2010, the Supreme Court concluded that the city‘s search of its employee‘s pager
message transcripts was reasonable and therefore, the employee‘s Fourth Ame ndment rights
were not violated. City of Ontario v. Quon, 2010 WL 2400087 (U.S. June 17, 2010). The
judgment was unanimous, though there were several opinions: Justice Kennedy wrote the
opinion for the Court; Justice Scalia joined in all but one part of that opinion, and wrote a
concurrence in part and in the judgment; Justice Stevens wrote a separate concurrence.
Reversing and remanding, the Supreme Court began its analysis with the two-step inquiry
established by the plurality in O’Connor v. Ortega, 480 U. S. 709, 711 (1987) — namely, that a
court must consider ―[t]he operational realities of the workplace‖ in order to determine whether
an employee‘s Fourth Amendment rights are implicated. If an employee has a legitimate privacy
expectation, an employer‘s intrusion on that expectation ―for non- investigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by the
standard of reasonableness.‖ (Justice Scalia outlined a different approach, dispensing with the
―operational realities‖ inquiry.) The Court declined to establish the extent of an employee‘s
expectation of privacy, pointing to the fact that the law and workplace norms addressing
computer technology were still evolving, and a ―broad holding concerning employees‘ privacy
expectations vis-à-vis employer-provided technological equipment might have implications for
future cases that cannot be predicted.‖ Instead, it assumed that Quon had some expectation of
privacy, but found that the search satisfied the ―reasonableness‖ standard set by the O’Connor
plurality. The search was necessary for non- investigatory, work-related purposes, as there was a
legitimate interest in ensuring both that employees were not out-of-pocket for work-related
expenses, and that the City was not paying for extensive personal use. The City‘s review of the
transcript was an ―efficient and expedient way‖ to see if the overages were work-related or not,
as it only focused on two months‘ worth of messages. The fact that Arch Wireless may have
violated the SCA by turning over the transcripts did not render the otherwise reasonable search
Although the Court declined to establish any clear guidelines regarding the existence and extent
of employee privacy expectations in employer-provided electronic communication devices, the
Court did provide two helpful guideposts for employers: first, it affirmed that the ―principles
applicable to a government employer‘s search of an employee‘s physical office apply with at
least the same force when the employer intrudes on the employee‘s privacy in the electronic
sphere,‖ and second, the Court expressly rejected a ―least intrusive search‖ requirement in
determining if a search was reasonable.
Walton County v. Stop the Beach Renourishment - Takings
The case arose in 2004, when property owners, under the name Stop the Beach Renourishment,
Inc. (STBR), a nonprofit association of owners of beachfront property in Florida, filed suit to halt
the planned restoration of beaches in Walton County along the northwest Florida panhandle. As
an aside, the group had originally organized under the name ―Save Our Beaches,‖ but the
acronym ―SOB‖ took its toll on the proceedings and the SOB‘s became the STBR‘s.
Under the state's Beach and Shore Preservation Act, counties and cities can restore beaches
eroded by hurricanes and storms by adding sand beyond a state-designated erosion control line -
separating private property from the state's property. After doing so, the new sand becomes
public beach because the projects are funded with state and federal dollars (The Beach and Shore
Preservation Act (Preservation Act), Fla. Stat. Ann. §§ 161.011-161.45). Theoretically, this
means what was once ―beachfront‖ property is pushed back from the beach due to the
intervention of state and local governments to rebuild the beach.
The Preservation Act expressly provides ―there is no intention on the part of the state to . . .
deprive any . . . land owner of the legitimate and constitutional use and enjoyment of his or her
property.‖ The Act preserves the rights of owners to use the new, public beachfront: any owner
who loses ―title to the mean high-water line‘ (MHWL) - the former shoreline - ―shall,
nonetheless, continue to be entitled to all common- law riparian rights‖ including ―ingress,
egress, view, boating, bathing, and fishing.‖ Id. § 161.201.
After losing administrative challenges, STBR challenged the state issued permit in state court,
asserting the Preservation Act to be an unconstitutional taking. Because the Act confers to the
state all land seaward of the old shoreline, it argued, the Act divests property owners of the right
to have their property touch the water - what STBR asserted was a common law ―littoral‖ right.
The Florida district court ruled in 2006 that the state's restoration effort constituted an
uncompensated taking, depriving property owners o f their right to maintain contact with the
water and their "right to accretion," which is the gradual accumulation of land by natural forces.
The Florida Supreme Court reversed the lower court order. "Without the beach renourishment
provided for under the act, the public would lose vital economic and natural resources," the court
held. "As for the upland owners, the beach renourishment protects their property from future
storm damage and erosion while preserving their littoral rights to access, use, and view.
Consequently, just as with the common law, the act facially achieves a reasonable balance of
interests and rights to uniquely valuable and volatile property interests."
The Florida Supreme Court held beachfront property owners enjoy four exclusive littoral rights
at common law: (1) a right of access to water; (2) a right to reasonably use the water; (3) a right
to a view of the water; and (4) a right of accretion. It also held these property rights cannot be
taken from owners without just compensation.
However, the majority reasoned, the Florida Constitution and common law grant the state all
lands seaward of the shoreline (specifically, the mean high water line) for public use;
furthermore, the Florida Constitution requires the state to protect its beaches. According to the
court, the Preservation Act ―effectuates this constitutional duty when the State is faced with
critically-eroded, storm-damaged beaches.‖ And it balances public and private interests,
allowing the state to restore beaches while preserving three of the four littoral rights enjoyed by
As for the fourth right, the right of accretion, the majority concluded it was ―not an issue.‖ It
emphasized an important distinction at common law between ―accretion,‖ a grad ual or
imperceptible accumulation of beach, and ―avulsion,‖ the ―sudden or perceptible loss of or
addition to the land by the action of the water.‖ Though owners have a common law right to
accreted beach, hurricanes are avulsive events. Under the doctrine of avulsion, the boundary
between private and public lands is the shoreline as it existed before the avulsive event, and an
owner (including the state) has a right to reclaim the land up to that boundary. Further, because
an avulsive event can change the relationship between a property owner‘s land and the public
land, the property owner does not have a ―vested‖ right in the location of the MHWL.
Furthermore, the majority held, Florida common law does not give owners any independent right
for their land to contact the water. Rather, the right of contact with the water is ―ancillary‖ to the
right of access to the water. The right of access is a ―core‖ littoral right that is protected by the
Preservation Act, which expressly gives owners rights of ingress a nd egress to the water. Thus,
the fact that owners‘ property would no longer touch the water is not relevant so long as their
rights to access and use the water are preserved under the Act.
The Florida Supreme Court concluded that the right to accretio ns was a future contingent
interest, not a vested property right. The group sought a rehearing and, when that was denied,
argued that the court‘s opinion itself effected a ―judicial taking‖ contrary to the Fifth and
Fourteenth Amendments. Significantly, the group did not raise a challenge to the Florida Act as
a deprivation of property without due process before the Florida Supreme Court, and only
obliquely raised it in the petition for certiorari. The Supreme Court, as a result, did not reach this
issue. IMLA participated as an amicus in support of Walton County.
On June 17, the Supreme Court decided, Stop the Beach Renourishment v. Florida Department
of Environmental Protection, 2010 WL 2400086 (U.S. June 17, 2010), all eight Justices hearing
the case upheld the ruling of the Florida Supreme Court finding there had been no
unconstitutional taking, but the Court split 4-4 on the important question of ―judicial takings.‖
The opinion by Justice Scalia concluded that a court could ―take‖ property just like any other
branch of government, but declined to find that the Florida Supreme Court‘s action rose to the
necessary standard. However, Justice Kennedy wrote separately, concurring in part and in the
judgment, joined by Justice Sotomayor; and Justice Breyer likewise concurred in part and in the
judgment, joined by Justice Ginsburg. Justice Stevens did not participate in the case or the
decision presumably because he has a beachfront condo in the State of Florida.
The simplest part of the court‘s ruling is that the Florida Supreme Court did not take property
without just compensation. As the Court reasoned, there could be no taking unless the petitioner
could show that, ―before the Florida Supreme Court‘s decision, littoral property owners had
rights to future accretions and contact with the water superior to the State‘s right to fill in its
submerged land. Though some may think the question close, in our view the showing cannot be
made.‖ Under Florida law, the State, as owner of the submerged land adjacent to littoral
property, had the right to fill that land, and any land created by avulsion belonged to the State,
regardless of whether the State itself caused the avulsion. ―The right to accretions was therefore
subordinate to the State‘s right to fill,‖ and the right to accretion was not implicated by the
beach-restoration project because the doctrine of avulsion applied. The Takings Clause only
protected property rights as they were established under state law, and the Florida Supreme
Court‘s opinion was ―consistent with these background principles of state property law.‖
Justice Scalia (joined by Chief Justice Roberts and Justices Thomas and Alito) opined further
that ―[o]ur precedents provide no support for the proposition that takings effected by the judicial
branch are entitled to special treatment.… the Takings Clause bars the State from taking private
property without paying for it, no matter which branch is the instrument of the taking.‖ The
other four Justices ruled that the Court did not need to reach that issue in this case: because no
unconstitutional taking of property occurred in this case, the question of judicial takings was left
for another day.
Lewis v. Chicago – Title VII
On May 24, the Court decided Lewis v. City of Chicago, 2010 WL 2025206 (U.S. May 24,
2010), the case involves issues of employment discrimination and time limits in which to file
suit. In 1995, the City of Chicago administered tests to 26,000 applicants for jobs as firefighters.
The test-takers were graded as ―well qualified,‖ ―qualified,‖ and ―not qualified‖ based on the
scores. The City mailed notice of the individual results to each test-taker on January 26, 1996.
The notice also informed applicants that, due to the large number of applicants who scored in t he
first category, it was unlikely that anyone in the ―qualified‖ category would be hired. (In fact,
just a portion of the ―well-qualified‖ applicants would be selected.) Those in the ―qualified‖
category would, however, remain on the eligible list for as long as the list was used. At the time
the results were announced, the Mayor issued a statement that, ―after all our efforts to improve
diversity [including racial], these test results are disappointing.‖
The plaintiffs, 6,000 African-American test-takers in the ―qualified‖ group, sued under Title VII
of the Civil Rights Act, alleging that the test had a disparate impact (that it disproportionately
classified them as ―qualified‖ rather than ―well qualified‖) and did not validly test aptitude. They
pointed to the fact that, although African-Americans accounted for nearly half of all applicants,
just over eleven percent of the ―well-qualified‖ applicants were black. They filed their charge on
March 21, 1997— 420 days after the date on which notice of the results of the test had been sent
to them, but within 300 days of the City‘s beginning to hire applicants from the ―well qualified‖
group. The City had used the 1995 test list for eleven rounds of hiring in 1996 and beyond. At
trial, the City did not dispute that the test had an adverse impact on black applicants, but argued
that (1) the cut-off score it used was justified by administrative convenience and that the test
validly measured some of the skills necessary for performing the job of a firefighter; and (2) the
suit was untimely. As a prerequisite to suit, the applicants had to file a charge with the Equal
Employment Opportunity Commission (EEOC) within 300 days of the time their claim
―accrued,‖ pursuant to 42 U.S.C. § 2000e-5(e)(1). Because they filed the first charge more than
300 days after notice of the results and scoring, the City argued that the plaintiffs failed to
comply with the 300-day charging period under Title VII.
The district court ruled that the City‘s selection procedure violated Title VII and that the suit
could proceed due to ―ongoing reliance‖ on the results. Each time the City hired applicants in
the ―well qualified‖ group, it committed a fresh violation of Title VII that may have harmed
―qualified‖ applicants. On appeal, the Seventh Circuit reversed. It said the plaintiffs filed the suit
too late because the charge was filed beyond 300 days of the only discriminatory act (sorting the
scores into categories), and that ―hiring only of applicants classified ‗well qualified‘ was the
automatic consequence of the test scores rather than the product of a fresh act of discrimination.‖
The employees sought certiorari and the Supreme Court granted their petition. IMLA filed an
amicus brief in support of the City, arguing against a theory of continuing violation and stressing
the substantial uncertainty and negative impact on operational workplace needs that an open-
ended limitation period would cause.
The Supreme Court reversed. Justice Scalia delivered the opinion for a unanimous Court,
limited to a single question: whether a plaintiff who did not file a timely charge challenging the
adoption of a practice could still assert a disparate- impact claim while challenging the
employer‘s later application of that practice. The Court reasoned that aside from the first round
of selections in May 1996 (which was beyond dispute as being outside the 300-day charging
period), the City‘s later use of its cutoff score in selecting candidates occurred within the
charging period. ―It may be true that the City‘s January 1996 decision to adopt the cutoff score
(and to create a list of the applicants above it) gave rise to a freestanding disparate- impact claim.
If that is so, the City is correct that since no timely charge was filed attacking it, the City is now
‗entitled to treat that past act as lawful.‘ … But it does not follow that no new violation
occurred—and no new claims could arise—when the City implemented that decision down the
road. If petitioners could prove that the City ‗use[d]‘ the ‗practice‘ that ‗causes a disparate
impact,‘ they could prevail.‖
Unlike disparate treatment claims, claims of disparate impact did not require proof of a
discriminatory intent or deliberate discrimination within the limitation period; thus, the claims
were not analogous to those based on the present effects of past discrimination. Pursuant to
§2000e–2(k), a Title VII plaintiff established a prima facie claim by showing that the employer
used a particular ―employment practice‖ that caused a disparate impact on one of the prohibited
bases. The term ―employment practice‖ clearly encompasses the conduct at issue, and the City
―use[d]‖ that practice each time it filled a new class of firefighters.
The Court‘s opinion concludes by noting that, ―[b]y enacting §2000e–2(k)(1)(A)(i), Congress
allowed claims to be brought against an employer who uses a practice that causes disparate
impact, whatever the employer‘s motives and whether or not he has employed the same practice
in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts
Salazar v. Buono - Establishment Clause/Memorials
This case involves a veterans‘ memorial, erected in 1934 on federal property in the Mohave
Desert that was ordered torn down because it contained a religious symbol. To avoid tearing the
memorial down, Congress entered into an agreement to transfer the one acre around the
monument to the VFW in exchange for them transferring 5 acres in the same area to the
government. The 9th Circuit ruled the government could not transfer the land to avoid the
violation; and that the monument must be destroyed. IMLA‘s amicus brief argued that the
presumptive propriety of transferring land from public to private landholders as a means to
remedy potential Establishment Clause violations is legally supported and is also a critical
curative mechanism for governmental entities seeking a legitimate option short of razing
historically significant memorials or displays.
On April 28, in a 5-4 decision, the Court held that the First Amendment did not compel a
―government to avoid any public acknowledgment of religion‘s role in society.‖ Salazar v.
Buono, 2010 WL 1687118 (U.S. April 28, 2010),
Seven justices found that Buono had Article III standing (with Justices Scalia and Thomas
expressly dissenting). The majority, in an opinion written by Justice Kennedy, reversed and
remanded on the merits, discussing how the courts below had erred in dealing with the
Establishment Clause question. Describing the 2002 ruling as ―questionable,‖ the majority noted
that respect for the legislative branch of government required judicial deference and prohibited
striking an Act of Congress ―except upon a clear showing of unconstitutionality.‖ Moreover, by
dismissing the legislative policy as illegitimate, the courts below failed to consider the legislative
context and the fact that the ―cross was not emplaced ... to promote a Christian message.‖ In a
strange development in this epic case, news reports indicate the cross was stolen shortly after the
Kenny A. v. Perdue – Attorneys’ Fees
This case concerns the award of attorneys' fees. The original complaint (filed a long time ago)
was a Section 1983 action against the State of Georgia for deficiencies in foster care in two
Georgia counties (Fulton and DeKalb). Following a successful resolution of the underlying
action, the district court considered attorneys fees. After a detailed explanation and discussion of
all the costs involved, the court used the lodestar method (the number of hours reasonably spent
on litigation multiplied by a reasonable hourly rate) to calculate the fee, which came to just over
$6 million. However, the district court stated that "the calculation of the lodestar does not end the
Court's inquiry. There remain other considerations that may lead the district court to adjust the
fee upward or downward, including the important factor of the results obtained." Hensley v.
Eckerhart, 461 U.S. 424 (1983). The court concluded that this includes upward adjustments in
the lodestar in the rare case where the fee applicant offers specific evidence to show that the
quality of service rendered was superior to what one might reasonably expect in light of the
hourly rates charged and that the success was 'exceptional.' The district court found
"exceptional" quality of service in this case, including an extraordinary commitment of capital
resources, superb quality of representation (the court stated: "plaintiff's counsel brought a higher
degree of skill, commitment. . .than the Court has seen displayed. . .during its 27 years on the
bench"), and exceptional outcome measures. After reviewing a number of declarations by
disinterested attorneys in the area, the court applied a multiplier of 1.75, bringing the total
fee to over $10.5 million. The Supreme Court granted certiorari and IMLA participated as an
amicus in support of the State.
On April 21, the Supreme Court, in a 5-4 vote, ruled that, under federal fee-shifting statutes,
while judges may award fees that go above a so-called ―lodestar‖ amount in ―extraordinary
circumstances,‖ including superior performance by attorneys, there was no basis for doing so in
this case. Perdue v. Kenny A. ex rel. Winn, 2010 WL 1558980 (U.S. April 21, 2010). In the
majority opinion written by Justice Alito, the Supreme Court overturned the award and
remanded, on the basis that district court‘s enhancement, by 75 percent, of the lodestar as the
award of reasonable attorneys‘ fees under § 1988, was essentially arbitrar y. The district court
failed to give ―proper justification‖ and a ―reasonably specific explanation‖ for the large
enhancement. Notably, Justice Alito referenced the effect a decision to the contrary would have
on the State‘s already stretched budget.
Christian Legal Society v. Martinez – First Amendme nt
The UC Hastings College of Law has an anti-discrimination policy that essentially states that the
university will not discriminate on the basis of religion, sexual orientation, and other factors
unrelated to this case. This policy conforms to California state law. In order for Hastings to
recognize a student group, the group must also follow the anti-discrimination policy and have an
open membership policy. The university interprets an open membership policy to mean that all
students can participate in the group's activities and all students have the ability to assume
leadership positions within the group and/or have voting rights within the group.
UC Hastings denied recognition status to the Christian Le gal Society, a student group, when it
learned that CLS did not allow homosexual students to become voting members and/or assume
leadership positions with the group. (Hastings had recognized a predecessor organization and
that organization had included gays as members, but the national CLS charter prohibits gays as
members.) CLS sued. First the District Court found Hastings‘ policy to be constitutional and
then the 9th Circuit upheld the lower court, in an unreported decision, and ruled that since the
parties stipulated that the university imposes an open membership rule on all student groups, the
conditions on recognition are viewpoint neutral and reasonable.
CLS asserted two principal arguments to the high Court: First, CLS maintained that it had a right
to exclude students, and still receive official recognition, because the inclusion of people whom
CLS considered to be non-believers would impair CLS's ability to convey its message. Second,
CLS argued, Hastings's policy discriminated against religious gro ups on the basis of their
viewpoint, since religious groups tended to be the ones most likely to run afoul of the policy.
IMLA participated as an amicus in support of the College in an effort to protect the right of local
governments to establish and enforce anti-discrimination policies in the use of their facilities.
Over the last decade, many cities and counties have declined to subsidize organizations, such as
the Boy Scouts, with membership or leadership policies that discriminate on the basis of sexua l
orientation. In 2007, the city of Philadelphia ended a special arrangement whereby the Boy
Scouts had previously leased a city-owned building for $1 rather than fair market value, on
account of the Scouts' discriminatory membership and leadership policies.
On June 28, in a 5-4 decision, the Supreme Court concluded that Hastings ―all comers‖ policy ―is
a reasonable, viewpoint- neutral condition on access to the student-organization forum.‖ The
court reasoned that in ―requiring CLS—in common with all other student organizations—to
choose between welcoming all students and forgoing the benefits of official recognition, . . .,
Hastings did not transgress constitutional limitations. ‖ Trial tactics played an important role in
In the course of the litigation, the parties entered into a stipulation that viewed in retrospect
doomed CLS‘s arguments:
―Hastings requires that registered student organizations allow any student to participate,
become a member, or seek leadership positions in the organization, regardless of [her]
status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students
holding Republican political beliefs from becoming members or seeking leadership
positions in the organization.‖ (emphasis added by the Court; citations omitted).
The lower courts and the majority relied on the stipulation in deciding that the policy did not
violate CLS‘ rights to free exercise of religion or to its members‘ right to expressive association.
Just as importantly, the majority concluded that the stipulation precluded the Court from
determining the constitutionality of the policy as they spurned CLS‘ arguments that Hastings
selectively enforced the policy and that the policy targeted ―‗solely those groups whose beliefs
are based on religion or that disapprove of a particular kind of sexual behavior,‘ and leave other
associations free to limit membership and leadership to individuals committed to the group‘s
In reaching their decision, the majority recognized the distinctions between the Court‘s forum
analysis cases and associational freedom cases, concluding that the limited public forum analysis
guides the framework for deciding CLS‘ free expression and associational freedom rights. In the
majority‘s view three observations support the determination as to which analysis to apply
CLS‘ rights of free expression and expressive association intertwine giving rise to what
the majority viewed as an anomalous result should Hastings‘ policy survive limited
public forum analysis only to fail expressive association analysis.
The majority felt that using the ―strict scrutiny‖ often applied in expressive associational
rights cases conflicted with one of the important elements of the analysis applied to
limited public forums – the right to exclude certain speech or speakers.
Finally, in further support of using the limited public forum analysis, the majority noted
the distinction in this case between cases such as Boy Scouts of America v. Dale , 530
U. S. 640, 648 (2000), that invalidated laws forcing groups to accept members with
differing views and those cases that withheld benefits from groups that had
discriminatory policies Grove City College v. Bell , 465 U. S. 555, 575–576 (1984) ; Bob
Jones Univ. v. United States , 461 U. S. 574, 602–604 (1983). The majority concluded
that CLS‘ situation more closely paralleled the latter line of cases.
Having determined to use the limited public forum analysis, the majority reasoned that Hastings‘
policy satisfied the test of reasonableness and found it to be viewpoint neutral. As with other
cases involving educational institutions the Court gave deference to Hastings‘ decision to adopt
the ―all comers‖ policy in considering whether the policy was reasonable.
Writing for the majority Justice Ginsburg advanced the unusual notion that the policy was all the
more reasonable because of the many other avenues and vehicles available and open to CLS to
communicate with its members absent the school‘s support. Justice Ginsburg cited the various
amenities and facilities available through Hastings that are open to all, but also referred to the
growing use of email, websites and social media that expand a group‘s opportunities to interact
with its members even outside the Hastings‘ infrastructure. Using facts that developed during
the year between Hastings refusal to recognize CLS and the suit, Justice Ginsburg used the
success that CLS had in gaining members and hosting a thriving network of events after it lost its
Hastings‘ accreditation to justify her argument to support the reasonableness of Hastings‘ policy.
Doe v. Reed – First Amendment Level of Scrutiny Applied to Public Records Requests in
In the State of Washington citizens can challenge state laws by referendum. To challenge a law
by referendum roughly four percent of Washington voters must sign a petition to put the issue on
the ballot. A referendum petition must include the names and addresses of the signers and be
submitted to the government for verification and canvassing, to ensure that only lawful
signatures are counted. The Washington Public Records Act (PRA) authorizes private parties to
obtain copies of government documents, and the State construes the Act to cover submitted
This case arises out of a state law extending certain benefits to same-sex couples, and a
corresponding referendum petition to put that law to a popular vote. Three groups filed public
record requests with the Secretary of State for contact information on the referendum petition.
The groups requesting this information publicly stated that they intended to publish the names of
the petition signers on the internet. Some of the signers and the petition sponsor objected and
sought an injunction to prevent disclosure under the Act asserting that public disclosure burdens
speech thereby violating the First Amendment.
Count I of the complaint alleged that ―[t]he Public Records Act is unconstitutional as applied to
referendum petitions.‖ Count II of the complaint a lleged that ―[t]he Public Records Act is
unconstitutional as applied to the Referendum 71 petition because there is a reasonable
probability that the signatories of the Referendum 71 petition will be subjected to threats,
harassment, and reprisals.‖ The District Court agreed with the petition signers under Count I that
the disclosure of identifying information burdens speech and issued an injunction.
The issue on appeal focused on the question of what level of scrutiny applies to government
action that burdens speech included in the referendum petition. The Ninth Circuit disagreed with
the district court, and applied intermediate scrutiny. As the court noted, ―a regulation that has an
incidental effect on expressive conduct is constitutional as long as it withstands intermediate
scrutiny.‖ U.S. v. O‘Brien, 391 U.S. 367 (1968). The Ninth Circuit held that the state public
records act furthers an important government interest unrelated to the suppression of free
expression, and the incidental restriction on First Amendment freedoms was no greater than
necessary to justify the interest. The State asserted two important interests: preserving the
interest of the election by promoting government transparency and accountability; and 2)
providing Washington voters with information about who supports placing a referendum on the
ballot. IMLA participated as an amicus in support of the State.
On June 24, in an 8-1 decision, Chief Justice Roberts announced the opinion for six of the eight
justices affirming the result reached in the Ninth Circuit. As this was a case involving a request
for an injunction, the merits had not yet been argued and all of the issues in the case were not
before the court. At the outset, the Chief Justice drew a bright line of demarcation between the
challenge in this case and other issues in the case that had not yet been decided. This case, he
ruled, had the earmarks of a facial challenge to the Public Records law as it applied to the
disclosure of petition signers‘ names in all circumstances; rather than a specific challenge to
releasing identifying information about those who signed this petition.
The Court clearly stated that signing a petition amounts to expressive conduct that the First
Amendment protects and therefore, mandated disclosure implicates the First Amendment and
demands the ―strictest scrutiny.‖ According to the Court, that standard ―requires a ‗substantial
relation‘ between the disclosure requirement and a ‗sufficiently important‘ governmental
interest.‖ To withstand this scrutiny, ―the strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment rights.‖
The State argued and the Court acknowledged that preserving the integrity of the electoral
process by combating fraud, detecting invalid signatures, and fostering government transparency
and accountability justifies disclosure on a facial review. The Court felt that the ―State‘s
interest is particularly strong with respect to efforts to root out fraud, which not only may
produce fraudulent outcomes, but has a systemic effect as well: It ―drives honest citizens out of
the democratic process and breeds distrust of our government.‖ Purcell v. Gonzalez , 549 U. S. 1,
4 (2006) ( per curiam ); see also Crawford v. Marion County Election Bd. , 553 U. S. 181, 196
(2008) (opinion of STEVENS , J.). ―The threat of fraud in this context is not merely hypothetical;
respondents and their amici cite a number of cases of petition-related fraud across the country to
support the point.‖
The Court also agreed that the ―interest extends to efforts to ferret out invalid signatures caused
not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who
are not registered to vote in the State. . . .That interest also extends more generally to promoting
transparency and accountability in the electoral process, which the State argues is ―essential to
the proper functioning of a democracy.‖
Nevertheless, the Court recognized that a balance must be struck if disclosur e leads to
harassment: ―In related contexts, we have explained that those resisting disclosure can prevail
under the First Amendment if they can show ―a reasonable probability that the compelled
disclosure [of personal information] will subject them to threats, harassment, or reprisals from
either Government officials or private parties.‖ It is here, that the Court reaffirmed the
distinction between a facial challenge and a challenge to disclosure in this specific instance by
noting that the arguments against disclosure all related to the harm that might be caused if the
petition signers in this case were identified publicly. Because the issues in Count II, the
challenge based on the likelihood of harassment in this specific case, had not been argued below,
the Court dodged answering the question.
McDonald v. Chicago – Second Amendme nt
Chances are this is this case that needs the least amount of introduction or discussion out of all
the ones in this report. Accordingly, we will give it little amplification. The Supreme Court
granted cert on the following question: Whether the Second Amendment right to keep and bear
arms is incorporated as against the States by the Fourteenth Amendment‘s Privileges and
Immunities or Due Process Clauses. IMLA signed on to a brief with the Illinois League of
Municipalities and argued in favor of local authority to decide whether to enact local legislation
On June 28, in a 5-4 decision, the majority concluded that the 14 th Amendment incorporated the
2nd Amendment and that the States and local governments are bound to adhere to its protections
and limitations. In short, as announced in Heller: the ―Second Amendment protects the right to
possess a handgun in the home for the purpose of self-defense.‖ To what it characterized as
―doomsday‖ fears about violence in the streets, the majority responded: ―our holding [in Heller]
did not cast doubt on such longstanding regulatory measures as ‗prohibitions on the possession
of firearms by felons and the mentally ill,‘ ‗laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms.‘ We repeat those assurances here.‖
Time will tell whether gun violence will increase or diminish after this decision, but we feel
confident that the courts will have ample opportunity to consider what constitutes acceptable gun
regulation under the 2nd Amendment.
October 2008 Term
Monuments and Municipal Messages – Pleasant Grove City, Utah v. Summum
Local governments had plenty to cheer about when a unanimous Supreme Court released its
decision in Pleasant Grove City, Utah v. Summum,1 arguably the most important decision of this
Term. First and foremost, the Court‘s ruling recognized the right, under the First Amendment, of
municipalities to express and shape their own local identity, even when the mode of expression
concerned a traditional public forum. While government entities remained constrained with
respect to regulating private speech in a public forum, pursuant to the First Amendment‘s Free
Speech Clause, the same scrutiny did not apply when the entity itself was the speaker.
The case arose out of a dispute over the placement of a private monument in a public park. The
park already contained a ―Ten Commandments‖ monument, donated to the City of Pleasant
Grove by the Fraternal Order of Eagles. The City‘s criteria for permanent displays in the park
required that monuments be directly related to the City‘s history, or be donated by a group with
―long-standing ties to the . . . community.‖ Summum, a religious group, applied to have a
monument of its ―Seven Aphorisms‖ displayed in the park, indicating that its proposed
monument would be similar to the Ten Commandments display. (The Summum religion
includes the belief that, when Moses received stone tablets from God on Mount Sinai, he
received two separate sets of tablets. According to Summum, the first was inscribed with the
Seven Aphorisms, a ―Higher Law.‖ Moses only received the Ten Commandments – something
of a poor second – after he destroyed the Aphorisms tablet. 2 ) When the City denied Summum‘s
request, citing its policy, Summum sued, alleging a violation of its free speech rights. 3
When the matter came before the U.S. Court of Appeals for the Tenth Circuit, that court held that
park monuments remained the speech of the donor entity and, thus, constituted private, not
government, speech, in a traditional public forum. Because the City‘s content-based choices and
policy failed strict scrutiny review, the City was ordered to accept Summum‘s monument. A
divided Tenth Circuit subsequently denied the City‘s petition for a rehearing and rehearing en
banc.4 The judges who dissented on the denial of rehearing (who would be referred to in the
Supreme Court decision), pointed out that parks, as traditional public forums, had to be open to
speeches, demonstrations, and other forms of transitory expression. The City, in this case, had
not, ―by word or deed, invite[d] private citizens to erect monuments of their own choosing in
these parks. It follows that any messages conveyed by the monuments they have chosen to
display are ‗government speech,‘ and there is no ‗public forum‘ for uninhibited private
Following the grant of certiorari, the International Municipal Lawyers Association (IMLA) filed
an amicus brief in support of the City, authored by Professor Mary Jean Dolan of the John
Marshall Law School. 6 The brief included a questionnaire distributed to IMLA members
regarding existing municipal practices regarding privately-donated monuments displayed in
parks, and a summary of the responses received. The questions included whether ―the
municipality you represent has been offered, accepted or rejected a ny monument(s) by/from a
private person,‖ whether the monument was accepted or rejected; whether the municipality
applied ―any content-related criteria (e.g., local historical significance) in determining‖ to accept
or reject the monument; whether the municipality owned and maintained accepted monuments;
and whether there was any ―public opposition to the existence or location of a monument,
whether proposed, new, or previously-existing.‖7 Out of the 117 applicable responses, 112 of
them indicated that the municipality clearly exercised some form of content control over the
selection and display of donated monuments in public parks, either by way of a written policy, an
ordinance, a legislative or executive decision that required prior submission and/or des ign input,
or another form of regulation and review. 8 This information proved to be critically important,
giving the Court a feel for how common it was for park monuments to be the donation of a
private entity, and, second, by indicating that some form of content control and discretion was
usually exercised by the donee (though this could fall short of a specific written policy).
The U.S. Supreme Court cited this survey of existing monuments and placement policies in
determining that the placement of a permanent monument in a public park was a form of
government, not private, speech; further, that although parks were a traditional public forum for
speeches and other transitory expressive acts, the display of a permanent monument in a public
park was not a form of expression to which forum analysis applied. Justice Samuel Alito wrote
the opinion, with five justices filing concurring opinions – Justice Stevens (joined by Justice
Ginsburg), Justice Scalia (joined by Justice Thomas), Justice Breyer, and Justice Souter.
The Court began by noting that there were no prior decisions on the application of the Free
Speech Clause to a government entity‘s acceptance of privately donated, permanent monuments.
Like private entities, a government had a right of expression, the ―right to speak for itself.‖9
While the Free Speech Clause restricted the government‘s regulation of private speech, including
speech in traditional public forums, it did not apply to the government‘s own speech. Permanent
monuments accepted by governments and placed on public property, despite the fact that they
were often donated or financed by private entities, ―typically represent government speech.‖10
Such displays were a traditional form of a government‘s expression, and ―throughout our
Nation‘s history, the general government practice with respect to donated monuments [was] one
of selective receptivity,‖ 11 demonstrated by way of design input, prior submission requirements,
requests for modifications, and legislative approval of the spec ific content. In addition, the
public parks in which the displays were placed were generally ―closely identified in the public
mind with the government unit that own[ed] the land.‖ 12 Accordingly, Pleasant Grove City, like
other governments, was entitled to take into account content-based factors, like local history and
culture, in deciding whether to accept a donated monument. Further, in making the decision to
accept or reject a permanent monument, the municipality was legitimately choosing its own
message and shaping its municipal identity.
The Court rejected Summum‘s argument that something more definite or formal (e.g., the
municipal council actively passing a resolution) was needed before a government could be said
to adopt a monument as its own expressive vehicle. ―We see no reason for imposing a
requirement of this sort,‖ stated the Court, adding that the City, in this case, took ownership of
most of the monuments in the park. 13 To require anything more would be a ―pointless exercise
that the Constitution does not mandate.‖ 14 Moreover, this would be unworkable for other
reasons: a monument, even a text-based one, could easily convey more than one message. As
demonstrated by the Statue of Liberty, the message intended by monument‘s creator or donor
could be different from that expressed by the government accepting the monument, and could
change over time. 15
Public form analysis was ―out of place‖ in addressing such displays. 16 The installation of
permanent monuments was not analogous to other forms of speech on government public
property – unlike demonstrating or leafleting, parks could only accommodate a finite number of
permanent displays – and the application of content- neutral time, place and manner restrictions
was not feasible because the ―obvious truth of the matter [was] that if public parks were
considered to be traditional public forums for the purpose of erecting privately donated
monuments, most parks would have little choice but to refuse all such donations.‖ 17
Several of the justices touched briefly on the ―shadow‖ in this case, the Establishment Clause.
Justice Scalia, referring to the Court‘s earlier ruling in Van Orden v. Perry,18 declared that the
city did not need to ―fear that [its] victory has propelled it from the Free Speech C lause frying
pan into the Establishment Clause fire. Contrary to respondent‘s intimations, there are very good
reasons to be confident that the park displays do not violate any part of the First Amendment.‖19
Justice Souter, taking a broader look, indicated that if a monument had ―some religious
character, the specter of violating the Establishment Clause‖ would require the city ―to take care
to avoid the appearance of a flat-out establishment of religion, in the sense of the government‘s
adoption of the tenets expressed or symbolized.‖20 However, it was ―simply unclear how the
relatively new category of government speech [would] relate to the more traditional categories of
Establishment Clause analysis, and this case [was] not an occasion to speculate.‖ 21
Justices Stevens and Breyer also echoed the need for municipalities to be careful. Justice Stevens
indicated the Court‘s decision was not a ―free license‖ for a government to ―communicate
offensive or partisan messages;‖22 and Justice Breyer likewise indicated that the government
speech doctrine would not permit a city to ―discriminate in the selection of permanent
monuments on grounds unrelated to the display‘s theme, say solely on political grounds.‖23
Another limitation on the ruling is that it addresses o nly permanent displays: there may be issues
with respect to more transient or temporary displays in public parks that will need to be
addressed by other rulings. 24
Questions clearly remain, and the debate over the parameters of the government speech doctrine
will continue. 25 Indeed, the ―fire‖ mentioned by Justice Scalia ignited a scant few days after the
Summum ruling. In late February, the Court agreed to hear a case, Salazar v. Buono, that
involves a cross erected on federal land – on what used to be part of the Mojave National
Preserve – by private citizens as a memorial to the ―Dead of All Wars.‖ 26 Subsequently, in light
of an Establishment Clause challenge, Congress enacted legislation ordering the Secretary of the
Interior to convey a one-acre parcel of land that included the monument to a veterans‘ group, in
exchange for a parcel of privately-owned land of equal value, with the federal government
retaining a reversionary interest in the event the memorial use lapsed. However, the statute did
not mandate that a cross remain as part of the memorial. The Ninth Circuit determined that the
presence of a cross on federal land violated the Establishment Clause; following the transfer, it
held that the government continued impermissibly to endorse religion despite the divestiture, by
allegedly retaining control and oversight over the land, and by continuing to endorse religion by
permitting a cross at the site. 27
Can a government entity sidestep an Establishment Clause challenge with respect to a sectarian
display on public land by simply deeding or exchanging the land, and leaving the symbol intact?
We‘ll know after the case comes up for argument in the Court‘s next Term, starting October 05.
IMLA is participating in the Salazar case as an amicus in support of the government‘s position,
and to support the concept that a solution to an Establishment Clause violation should include a
sale of the property.
Section 1983 and Qualified Immunity – Pearson v. Callahan
Pearson v. Callahan 28 was the case in which the Court directed the parties to brief, in addition to
the other questions presented, the issue of whether the two-step qualified immunity analysis in
Saucier v. Katz ―should be overruled.‖ The facts of the case were as follows: after an informant
identified Callahan as a drug dealer, police told the informant to set up a drug buy at Callahan‘s
home. They ―wired‖ the informant, gave him a marked bill, and agreed upon the signal that he
was to give when the buy was completed. Receiving the signal, officers entered Callahan‘s home
and found drugs and the marked bill on Callahan. The officers did not have an arrest or search
warrant at any time. The trial court found that the evidence was admissible because the
existence of exigent circumstances made the search reasonable, despite the absence of a warrant.
When this was reversed on appeal, Callahan brought a Section 1983 action against the officers
and municipality. Using the Saucier v. Katz analysis, the Tenth Circuit held that the officers had
violated Callahan‘s clearly established rights, rejecting the application of the ―consent once
removed‖ doctrine. The doctrine applied when an undercover officer entered a house at the
express invitation of someone with authority to consent, established probable cause to arrest or
search, and then immediately summoned other officers for assistance. At the time, only the
Seventh Circuit had adopted the doctrine‘s extension to private informants. The Tenth Circuit,
however, held that because the informant was not a police officer, Callahan had never consented
to any police entry into his home, directly or indirectly. Further, as neither the Tenth Circuit nor
the Supreme Court recognized the application of the ―consent once removed‖ doctrine to a
civilian informant, the law was ―clearly established‖ and the officers were not shielded by
Dealing with the issues of whether, for qualified immunity purposes, officers could enter a home
without a warrant on the theory that the owner consented to the entry by previously permitting an
undercover informant into the home, and second, the validity of Saucier‘s sequenced test, the
Supreme Court reversed, with Justice Alito writing the opinion for the unanimous court. The
officers were entitled to qualified immunity because their entry did not violate clearly established
law. At the time of the entry, the ―consent once removed‖ doctrine had ―gained acceptance in
the lower courts,‖ and the Seventh Circuit had accepted its extension to cases involving
consensual entries by private citizens acting as confidential informants. The officers here were
entitled to rely on these cases, even though their own circuit had not yet ruled on the doctrine‘s
extension. They were entitled to qualified immunity on the ground that it was not clearly
established at the time of the search that their conduct was unconstitutional. On the larger issue,
the Court now held ―that the Saucier procedure should not be regarded as an inflexible
requirement.‖ ―[W]e now have a considerable body of new experience to consider regarding the
consequences of requiring adherence to this inflexible procedure. This experience supports our
present determination that a mandatory, two-step rule for resolving all qualified immunity claims
should not be retained.‖29 The judges of the district courts and the courts of appeals should
instead exercise their ―sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.‖30 IMLA participated as an amicus in this case, in support of the petitioning officers and
Search and Seizure – Negligent Mistakes By Police Clerks – Herring v. U.S.
This case dealt with whether the exclusionary rule applied to evidence seized incident to an
unlawful arrest, made in reliance on erroneous information negligently provided by another law
enforcement agency. When Herring came to pick up something at a police vehicle impound lot,
an investigator asked the county‘s warrant clerk to check for any outstanding warrants. There
were none in their county, but a clerk in the neighboring county advised that there was an active
warrant for Herring‘s arrest in that jurisdiction. Herring was arrested and searched incident to
arrest, and drugs and a gun (which he was not permitted to have, being a felon) were found.
Shortly after the search, the county clerk received a call advising of a mistake: the warrant
mentioned had actually been recalled five months previously. Herring sought to suppress the
evidence of the search, claiming that it had been obtained pursuant to an illegal arrest. The
Eleventh Circuit, finding that the arresting officers were entirely innocent of any wrongdoing or
carelessness and that the failure to update records was simple negligence, ruled that the evidence
was admissible under the good- faith rule in United States v. Leon, 468 U.S. 897 (1984).
The Supreme Court affirmed, in a majority opinion written by the Chief Justice. Justice Ginsburg
filed a dissenting opinion, joined by Justices Stevens, Souter and Breyer. 31 Justice Breyer filed a
dissenting opinion, joined by Justice Souter. The majority extended the ruling in Arizona v.
Evans, 514 U.S. 1 (1995) (under Leon, the exclusionary rule did not require the suppression of
evidence seized in violation of the Fourth Amendment because of clerical errors or mis-
communications made by court employees) to certain mistakes made by law enforcement
personnel. ―To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the
price paid by the justice system.‖32 Here, it was clear that the mistake fell far short of a flagrant
or deliberate violation of rights, deliberate misconduct, or systemic, reckless or routine failures to
keep accurate records; further, suppressing the evidence would have marginal or nonexistent
benefits with respect to deterrence. Accordingly, the mistake would not justify the application of
the exclusionary rule.
Traffic Stops and “Stop and Frisk” of Passengers – Arizona v. Johnson
Police patrolling a gang-intensive neighborhood stopped the vehicle Johnson was a passenger in
because the registration had been suspended for an insurance-related violation. The officers had
no reason to suspect the car‘s occupants of criminal activity, but one of the officers thought
Johnson was a gang member after she noticed his clothing and a scanner in Johnson‘s jacket
pocket. He cooperated in answering her questions, but because the officer wanted to question
Johnson away from the front-seat passenger to gather ―intelligence about the gang [Johnson]
might be in,‖ she told him to get out of the car. 33 She suspected he might have weapons on him,
so for ―officer safety‖ she patted him down, and found a gun. Johnson moved to suppress the
evidence, claiming that the gun was the product of an illegal search. The state court ruled that,
although Johnson was lawfully seized prior to the frisk, the detention had evolved into a
―consensual‖ and separate conversation about an unrelated investigation into gang affiliation.
Absent ―reason to believe Johnson was involved in criminal activity,‖ the officer had no right to
pat him down for weapons, even if she had reason to suspect he was armed and dangerous.
The Supreme Court reversed. Justice Ginsburg delivered the opinion for a unanimous Court,
ruling that the patdown did not violate the Fourth Amendment‘s prohibition on unreasonable
searches and seizures. Under Terry, ―stop and frisk‖ searches were constitutionally permissible if
police reasonably suspected that the person was committing or had committed a crime, and that
the person was armed and dangerous. Most traffic stops resembled the kind of brief detention
authorized in Terry, and previous caselaw confirmed that, for the duration of a traffic stop, police
effectively seized ―everyone in the vehicle‖ and could do a patdown of the driver and any
passengers upon reasonable suspicion that they might be armed and dangerous. Accordingly, in a
traffic-stop setting, the first Terry condition (a lawful investigatory stop) was met whenever it
was lawful for police to detain a vehicle and its occupants pending inquiry into a vehicular
violation. The police did not need to have cause to believe any occupant of the vehicle was
involved in criminal activity. However, to justify a patdown of the driver or passengers during a
traffic stop, the police were required to have a reasonable suspicion that the person subjected to
the frisk was armed and dangerous. Here, Johnson was initially lawfully detained incident to the
legitimate traffic stop. The Court questioned the lower court‘s characterization of the ensuing
encounter with Johnson as ―consensual,‖ but found the officer‘s inquiries into matters unrelated
to the justification for the stop did not convert the encounter into something other than a lawful
seizure, as those inquiries ―did not measurably extend the duration of the stop.‖ ―Nothing
occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop
had ended or that he was otherwise free ‗to depart without police permission.‘... [The officer]
surely was not constitutionally required to give Johnson an opportunity to depart the scene after
he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous
person to get behind her.‖34
Employme nt – Title VII and Anti-Retaliation Protection and Covered Activities – Crawford
v. Metropolitan Government of Nashville
Is a municipal employee‘s participation in an employer- initiated investigation a covered activity
under the anti-retaliation provision of Title VII? In a unanimous decision, the Supreme Court
ruled it was. 35 The employee, Vicky Crawford, was interviewed after the municipal employer
launched an investigation of Crawford‘s superior, H. When interviewed, Crawford advised that
she and other employees had been sexually harassed by H., but she had not filed a complaint on
her own or reported the activity independently of the investigation. H. was not disciplined, but
Crawford was later fired for alleged embezzlement, a charge subsequently found to be
unsubstantiated. Crawford filed suit under Title VII, claiming the employer fired her in
retaliation for her report of H‘s behavior, in violation of 42 U.S.C. §2000e–3(a), which makes it
unlawful ―for an employer to discriminate against any . . . employe[e]‖ who (1) ―has opposed
any practice made an unlawful employment practice by this subchapter‖ (the opposition clause),
or (2) ―has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter‖ (the participation clause). The U.S. Court of
Appeals for the Sixth Circuit affirmed the dismissal of her claim on the basis that Crawford, who
had not initiated any complaint prior to the investigation, failed to meet the opposition clause‘s
requirement of ―active, consistent‖ opposing activities; second, the participatio n clause did not
cover the employer‘s internal investigation because it was not conducted pursuant to a Title VII
charge pending with the Equal Employment Opportunity Commission.
Justice Souter delivered the opinion of the Supreme Court. Because the word ―oppose‖ in the
legislation was undefined, it carried its ordinary dictionary meaning of ―resisting or contending
against.‖ One could oppose behavior without active resistance: for example, someone who had
taken no action at all to advance a position beyo nd disclosing it could still be in opposition to the
death penalty. The statement Crawford alleged she gave to the investigators was, thus, covered
by the opposition clause, being ―an ostensibly disapproving account of sexually obnoxious
behavior toward her by a fellow employee.‖36 To hold otherwise would produce a ―freakish
rule‖ that protected an employee who reported discrimination on her own initiative, but not one
who reported the same discrimination in the same words when her boss asked a question. 37
Because Crawford‘s conduct was covered by the opposition clause, the Court did not address the
argument that the Sixth Circuit had misread the participation clause as well. Justices Alito and
Thomas concurred but emphasized a qualification or limitation: that the Court‘s holding did not
and should not ―extend beyond employees who testif[ied] in internal investigations or engage[d]
in analogous purposive conduct;‖ further, the opposition clause should only protect conduct that
was ―active and purposive,‖ as it was questionable whether ―silent opposition‖ was protected. 38
Commentators point out that Justice Souter‘s opinion avoided these restrictions and that none of
the other Justices joined in the concurrence. Will this open the door to a very broad reading of
―oppose‖ as including unspoken or silent opposition? We‘ll see.
Prosecutorial Immunity in Damage Laws uits – Van de Kamp v. Goldstein
This case features the false testimony of a jailhouse informant gloriously named Fink. In 1980,
Goldstein had been convicted of murder based, in part, on the false testimony that he had
confessed to Fink. After 24 years in prison, Goldstein was released after filing a successful
federal habeas petition that claimed Fink had received reduced sentences for providing
prosecutors with favorable testimony in other cases; that prosecutors knew, but failed to give his
attorney, this potential impeachment information; and that this failure led to his erroneous
conviction. Goldstein brought a Section 1983 action against a former Los Angeles County
district attorney, John Van de Kamp, and his chief deputy district attorney, Curt Livesay,
alleging that the prosecution violated its constitutional duty to communicate impeachment
information due to the failures of the defendant supervisory prosecutors to properly train or
supervise prosecutors, or to establish an information system containing potential impeachment
material about informants. Claiming absolute immunity, the defendants sought to dismiss the
complaint. The district court declined, finding that the conduct was ―administrative,‖ not
―prosecutorial,‖ and thus outside the scope of an absolute immunity claim. The Ninth Circuit, on
interlocutory appeal, affirmed. IMLA participated in this case as an amicus in support of the
The Supreme Court, in a unanimous opinion written by Justice Breyer, reversed and remanded,
finding that the defendants were entitled to absolute immunity with respect to Goldstein‘s
supervision, training, and information-system management claims. 39 Those claims focused upon
a ―certain kind of administrative obligation – a kind that itself [was] directly connected with the
conduct of a trial‖40 and distinguishable from administrative duties connected to workplace
hiring, payroll administration, the maintenance of physical facilities, and the like. Significantly,
the kind of activities at issue necessarily required legal knowledge and the exercise of related
discretion, and this weighed in favor of absolute immunity. The ―faulty training‖ claim rested
upon a consequent error by an individual prosecutor in the midst of trial, and because better
training or supervision might prevent most, if not all, prosecutorial errors at trial, allowing the
claim here would grant permission to criminal defendants to bring claims in other similar
instances, in effect claiming damages for (trial-related) training or supervisory failings. The
analysis and outcome were similar with respect to the information-management claim – deciding
what to include in an information system was ―little different from making similar decisions in
respect to training,‖ 41 and determining the criteria for inclusion or not required knowledge of the
law. Because all these activities were connected with the prosecutor‘s basic trial advocacy
duties, they were not ―administrative,‖ and were protected by absolute immunity.
Unions, Public Employees, and Non-Member Service Fees – Locke v. Karass
Locke was a state employee. Under the collective bargaining agreement between the employer
and MSEA, the local union and the exclusive bargaining agent for certain state employees,
MSEA was required to provide certain services to employees regardless of whether they were
members. As a result, the union was entitled to receive an ―agency fee‖ or ―service fee‖ from
nonmember employees. The amount of the fee was equal to the portion of union dues related to
ordinary representational activities (collective bargaining or contract administration activities)
given the union‘s status as the exclusive bargaining agent, but minus any expenses not related to
such activities (those for political, public relations, or lobbying activities). The fee also included
a charge that represented the ―affiliation fee‖ the local paid to the national union, SEIU. MSEA
included, in its calculation of chargeable expenditures, the costs of litigation (by itself and SEIU)
that was germane to collective bargaining, which meant nonmembers paid for union litigation
conducted by or on behalf of other units or the national affiliate, including the salaries of SEIU
lawyers. The nonmembers who objected could arbitrate the fee, with the all fees paid by
nonmembers being placed in an interest-bearing escrow account until arbitration was complete.
The plaintiffs, including Locke, brought a Section 1983 action alleging, among other things, that
the inclusion of the cost of extra-unit litigation (the litigation related to or on behalf of other
bargaining units) violated their First Amendment rights, as the State had no compelling state
interest in SEIU‘s ―far-flung litigation activities nationwide.‖ The First Circuit disagreed, and
affirmed the grant of summary judgment in favor of MSEA and the employer.
In an opinion written by Justice Breyer, the Supreme Court affirmed, finding that a local union
could charge nonmembers for national litigation expenses provided the subject matter of the
extra- local litigation was of a kind that would be chargeable if the litigation were local, and the
charge was reciprocal in nature. 42
Ban on Political Payroll Deductions – Ysursa v. Pocatello Educ. Association
This case centered on a provision in the 2003 Idaho Voluntary Contributions Act. The law
permitted public employees to authorize payroll deductions for general union dues, but § 44-
2004(2) provided that deductions for ―political activities‖ (defined as ―electoral activities,
independent expenditures, or expenditures made to any candidate, political party, political action
committee or political issues committee or in support of or against any ballot measure‖) ―shall
not be deducted from wages, earnings or compensation of an employee.‖ The policy behind the
enactment was to avoid the appearance that carrying out the public‘s business was tainted by
partisan political activity. A group of Idaho public emplo yee unions challenged the provision on
the basis that the Act infringed their constitutional rights under the First and Fourteenth
Amendments. The district court held that the ban was constitutional as applied to the State
government and its employees, because the First Amendment did not compel the State to
subsidize speech by providing, at its own expense, payroll deductions for the purpose of paying
union dues or association fees for State employees. However, it found the ban was
unconstitutional with respect to private and local government employers, on the basis that the
State had failed to identify any subsidy it provided to such employers to administer the payroll
deductions. When the State appealed the ruling with respect to local government employees, the
Ninth Circuit affirmed, finding that § 44-2004(2) violated the First Amendment because it was a
content-based law for which the State officials asserted no compelling justification. Further,
while the State had the ultimate power of control over units of local government, it did not
actually operate or control their payroll deduction systems, and its control was analogous to a
State‘s regulatory power over a private utility.
The Supreme Court, in a 6-3 opinion, reversed. 43 Chief Justice Roberts delivered the opinion of
the Court, ruling that the ban on political payroll deductions, as applied to local governmental
units, did not infringe the unions‘ First Amendment rights. The Court drew a distinction
between suppressing speech, on one hand, and declining to promote speech, on the other. The
law in issue did not restrict the unions‘ speech rights, but simply required them to exercise such
rights without the benefit of a State subsidy and without enlisting the State in support of their
endeavors. Accordingly, the decision not to subsidize the exercise of a fundamental right did not
infringe that right, and Idaho was under no obligation to aid the unions in their political
activities. The State needed only to show a rational basis to justify the ban. Ba nning payroll
deductions for political speech furthered the government‘s interest in ―distinguishing between
internal governmental operations and private speech‖ and in avoiding the appearance of
government entanglement with partisan politics and, thus, was ―plainly reasonable.‖44 Turning to
issue of the ban in relation to local governments and whether this amounted to something more
akin to the ―suppression‖ of speech (i.e., that the State was no longer declining to facilitate
speech through its own payroll system, but was obstructing speech in the local governments‘
payroll systems), the majority held that this argument was ―unpersuasive.‖ ―[W]e are aware of no
case suggesting that a different analysis applies under the First Amendment depending on the
level of government affected,‖ and the State‘s interest in de-politicizing its operations extended
―to all public employers at whatever level of government.‖ 45 The lower court‘s ―private utility‖
analogy was inapt, as local governments were subordinate units o f government created by the
State. Given that fact, it was irrelevant how payroll issues were dealt with by or between the two
levels of government, and how the State allocated funding or management responsibilities
between the different levels of government.
Vehicle Searches and Search Incident to Arrest – Arizona v. Gant
Gant arose out of an appeal from an Arizona Supreme Court decision which found that police
officers were not entitled to conduct a warrantless vehicle search incident to an arrest, where the
scene had been secured and the arrestee was handcuffed and under the supervision of a police
officer. The officers had come to Gant‘s residence to investigate a tip about drug activity. They
spoke with Gant, and later discovered that he had a suspended driver‘s license and an
outstanding warrant for driving with a suspended license. They went back, and while they were
there, Gant drove up and parked his car in the driveway. He was arrested on the traffic offence,
and handcuffed and placed in the back of a police car, all without incident. The scene was
secure, with at least four officers onsite. After Gant had been locked in the police car, the
officers searched his car and found a weapon and cocaine. When asked why the search had been
conducted, one of the officers testified: ―Because the law says we can do it.‖ 46 Gant moved to
suppress the evidence seized in the vehicle search.
The Arizona Supreme Court held that the search violated the Fourth Amendment. Addressing the
argument that the search fell within the constitutionally permissible scope of a vehicle search
incident to arrest, as articulated by New York v. Belton,47 the court held that the real issue was
whether the police could conduct a search incident to arrest at all once the scene had been
secured, citing the ―twin rationales‖ for a search incident to arrest established in Chimel v.
California, 395 U.S. 752 (1969). The reasons supporting a warrantless search of the vehicle –
the protection of the arresting officers and a need to preserve evidence – could not apply in the
circumstances, and, as a result, the court held that the search was unreasonable.
In a 5-4 ruling, the Supreme Court affirmed, clarifying and limiting the scope of the rule
established in Belton. Noting that its ruling in Belton had ―been widely understood to allow a
vehicle search incident to the arrest of a recent occupant even if there [was] no possibility the
arrestee could gain access to the vehicle at the time of the search,‖ 48 the Court rejected this
interpretation, pointing out that it ―untether[ed] the rule from the justifications underlying the
Chimel exception – a result clearly incompatible with [the Court‘s] statement in Belton‖49
affirming the fundamental principles established in Chimel. The majority opinion in Gant,
written by Justice Stevens, formulated the rule as follows: police officers could validly search the
passenger compartment of a vehicle incident to a recent occupant‘s arrest only if it was
reasonable to believe that the arrestee could access the vehicle at the time of the search (i.e., that
he was within reaching distance) or that ―evidence of the offense of arrest might be found in the
vehicle.‖50 However, Belton did not authorize a vehicle search incident to a recent occupant‘s
arrest after the arrestee had been secured and was not in a position to access the interior of the
vehicle. In this case, as neither the possibility of access nor the likelihood of discovering
offense-related evidence authorized the search, the search of Gant‘s ve hicle fell outside the
incident to arrest exception to the Fourth Amendment‘s warrant requirement.
CERCLA and Apportionme nt of Liability – Burlington Northern and Santa Fe Railway
Company v. U.S.; Shell Oil Company v. U.S.
Whether and to what extent can a party associated with a contaminated site be held responsible
for the full costs of remediation? This case concerned the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 51 legislation designed to promote the
cleanup of hazardous waste sites and to ensure that those responsible for site contamination were
also responsible for the cleanup costs. Broadly speaking, CERCLA imposes liability on four
classes of potentially responsible parties (PRPs): (i) owners and operators; (ii) those who, at the
time of disposal of any hazardous substance, owned or operated a facility at which hazardous
substances were disposed of; (iii) those who arranged for disposal or treatment, or arranged for
transport for disposal or treatment, of hazardous substances owned or possessed by such person,
and (iv) those who accepted any hazardous substances for transport to disposal or treatment
facilities, from which there was a release or a threatened release of a hazardous substance, which
caused the incurrence of response costs. Further, the Act did not mandate ―joint and several‖
liability in each case, and allowed apportionment where there was ―a reasonable basis for
determining the contribution of each cause to a single harm.‖ 52
Since 1960, B&B, a company, operated an agricultural chemical distribution business on land in
California – its own lot and a lot leased from two railway companies – with both lots graded
toward a sump and drainage pond. B&B purchased pesticides and other hazardous chemical
products from suppliers, including Shell Oil Company, and stored them on its land. During
delivery, spills and leaks occurred; further, waste water and chemical runoff from the facility
seeped into the ground water below. Shell subsequently took steps to e ncourage the safe
handling of its products by customers, including inspections and requiring self-certification of
compliance with applicable laws and regulations, and was aware that B&B was a ―sloppy
operator.‖ B&B became the target of both state and fed eral environmental agency
investigations, and was insolvent by 1989. In 1991, EPA issued an administrative order to the
railroads directing them, as owners of part of the property, to remediate the land. They complied,
at a cost of over $3M. In addressing the governments‘ total response costs, the district court held
that (1) both the railroads and Shell were PRPs under CERCLA because of ownership or because
of ―arranging for‖ the disposal of hazardous substances through sale and delivery, and (2) the
contamination was divisible and capable of apportionment, so joint and several liability was not
imposed. Shell‘s share of the total site response cost was 6%, and that of the railways was 9%.
On appeal and cross appeal, the Ninth Circuit held Shell was properly held liable as an entity that
had ―arranged for disposal‖ of hazardous substances within the meaning of §9607(a)(3), but
reversed the district court‘s apportionment of liability, finding Shell and the railroads to be
jointly and severally liable for the governments‘ cost of responding to the contamination.
In an 8-1 opinion by Justice Stevens, the Supreme Court reversed and remanded; Justice
Ginsburg filed a dissenting opinion. Shell was not liable as an ―arranger‖ of disposal. Because
CERCLA did not define what was included in arranging for disposal of a hazardous substance,
the majority gave the phrase its ordinary meaning, one that required an intent to dispose of the
product during the transfer process, by one or more of the methods described in §6903(3). Mere
knowledge of minor, accidental spills or leaks that occurred during product delivery was
insufficient, ―particularly when the disposal occur[ed] as a peripheral result of the legitimate sale
of an unused, useful product.‖53 Further, the evidence indicated that Shell took numerous steps
to encourage its distributors to reduce the likelihood of such spills. This conclusion made it
unnecessary for the Court to determine if the apportionment of liability regarding Shell was
justified; however, it did reverse the Ninth Circuit‘s imposition of joint and several liability with
respect to the railroads. The district court had reasonably apportioned the railroads‘ share of the
site remediation costs at 9%, given that it was ―abundantly clear that the primary pollution‖ at
the site was contained in the portion most distant from the railroads‘ parcel, and that the spills of
hazardous chemicals that occurred on the railroad parcel contributed to no more than 10% of the
total site contamination, some of which did not require remediation.
Voting Rights Act and Preclearance Require ments – Northwest Austin Mun. Utility Dist.
Number One v. Holder
On June 22, the Court released its ruling in Northwest Austin Mun. Utility Dist. Number One v.
Holder, 54 a case dealing with the preclearance obligation and bailout provision in the Voting
Rights Act of 1965.
By way of background, Section 5 of the Act prohibits ―covered jurisdictions‖ (states and political
subdivisions with histories of racial discrimination in voting) from making any changes in their
voting procedures without first demonstrating to the federal government (the Attorney General or
a three-judge panel of the court) that the change ―neither has the purpose nor will have the effect
of denying or abridging the right to vote on account of race or color.‖ If the Attorney General
makes no objection after sixty days, or if the district court grants a declaratory judgment, the
jurisdiction may implement the change. Congress adopted a formula that utilized two proxies for
discrimination to be used in determining which jurisdictions would be ―covered jurisdictions,‖
and incorporated two procedures for adjusting coverage over time, including those that allowed
jurisdictions to earn exemptions. A ―bail-out‖ provision, 42 U.S.C. § 1973b(a), allows
jurisdictions meeting the stated requirements to terminate their Section 5 preclearance obligation.
Congress has reauthorized and extended these provisions several times, most recently for a
further 25 years in 2006. 55 Significantly, in 1975, Congress amended the legislation by the
addition of a prohibition of voting discrimination against certain language minorities (persons of
American Indian, Asian American, Native Alaskan, and Spanish descent). As a result of the
language minority amendments, Texas (and all of its political subdivisions) became a covered
jurisdiction, subject to Section 5. A week after the 2006 reauthorization was passed, the
Northwest Austin Municipal Utility District Number One, a small utility district in Texas, filed
suit seeking a bail-out or, in the alternative, bringing a facial challenge to the extension, alleging
that, in 2006, when Congress extended the provision, it lacked sufficient evidence of racial
discrimination in voting to justify the provision‘s intrusion upon state sovereignty. There was no
evidence that the district had ever discriminated on the basis of race in its elections.
The district court rejected both the request for a bail-out (finding that the plaintiff was not a
―political subdivision‖ eligible to seek a bail-out because it did not conduct voter registration)
and the challenge to the validity of the legislation. 56 In upholding the law, the unanimous court
held that, first, the applicable standard of review was the rationality standard in South Carolina v.
Katzenbach, 383 U.S. 301 (1966), and not the stricter ―congruence and proportionality‖ test (i.e.,
that the statutory scheme to remedy and prevent violations of the protected right was congruent
and proportional to the record Congress developed and to the risk of future constitutional harm)
in City of Boerne v. Flores, 521 U.S. 507 (1997), a Fourteenth Amendment case. The district
appealed, as it was entitled to do, directly to the U.S. Supreme Court.
Chief Justice John Roberts, writing for the eight- member majority in a narrow ruling, reversed
and remanded. Justice Clarence Thomas concurred in part and dissented in part. The majority
found that the court below had erred in ruling that the district was not eligible for the bail-out,
and this finding (particularly as the constitutional challenge was brought in the alternative) made
it unnecessary for the Court to address the constitutionality of Section 5. Dealing with the
entitlement to bail-out, ―specific precedent, the structure of the Voting Rights Act, and
underlying constitutional concerns compel a broader reading of the bailout provision;‖ one in
which all political subdivisions – not only the ones described in the definition – were eligible to
file a bail-out suit. 57
The majority concluded by pointing out that ―we are now a very different Nation‖ than the
America of the 1960s. 58 Whether current conditions continued to justify legislation like the
Voting Rights Act was ―a difficult constitutional question we do not answer today,‖ although the
majority floated a few federalism balloons. 59 First, Section 5 ―impose[d] substantial ‗federalism
costs,‘‖ being intrusions into areas of state and local policymaking, raising serious constitutional
issues. 60 Voter turnout and registration rates had changed significantly since the legislation was
enacted, and current burdens had to be ―justified by current needs‖ and political conditions. For
example, ―the racial gap in voter registration and turnout is lower in the Sta tes originally covered
by §5 than it is nationwide.‖61 Further, the Act differentiated between the States, contrary to the
―fundamental principle‖ of equal sovereignty. In summary, regardless of whether the provisions
were assessed using a rational basis standard or the stricter ―congruence and proportionality‖ test
in City of Boerne v. Flores, 521 U.S. 507 (1997), the majority opined that the Act‘s
―preclearance requirements and its coverage formula raise serious constitutional questions under
Justice Thomas‘s dissenting opinion held that the questions before the Court did require a
consideration of the Section 5 constitutional issue. ―[A]n interpretation of §4(a) that merely
makes more political subdivisions eligible for bailout does not render §5 constitutional and the
Court notably does not suggest otherwise.‖63 Seizing the same theme of changing times and
conditions that was touched upon slightly by the majority, he held that ―the lack of current
evidence of intentional discrimination with respect to voting renders §5 unconstitutional. The
provision can no longer be justified as an appropriate mechanism for enforcement of the
Fifteenth Amendment.‖64 The extraordinary conditions, the ingenious and ―extensive pattern of
discrimination‖ against minorities, which required Congress‘s intervention to safeguard voting
rights, no longer existed and had ―long since passed.‖ 65 The remaining discrete and isolated
incidents of discrimination had ―never been sufficient justification for the imposition of §5‘s
extraordinary requirements.‖ 66 The resulting ―acknowledgment of §5's unconstitutionality
represents a fulfillment of the Fifteenth Amendment‘s promise of full enfranchisement and
honors the success achieved‖ by the Voting Rights Act. 67
Disparate Impact, Promotional Exams, and “Reverse Discrimination”– Ricci v. DeStefano
Another important case recently decided is Ricci v. DeStefano.68 Ricci, an appeal from a very
brief ruling of the Second Circuit Court of Appeals, deals with Title VII of the Civil Rights Act
of 1964 in the context of firefighter testing and promotion procedures. Title VII prohibits
intentional acts of employment discrimination based on race, color, religion, sex, and national
origin. The plaintiffs were all firefighters employed by the City of New Haven, Conn., who
applied for promotion and took the necessary exams in 2003. The exams were prepared by an
Illinois company that specialized in entry- level and promotional examinations for police and fire
departments. The company‘s vice-president subsequently testified that all of the questions were
drawn from or based in the syllabus, and that the exam was facially neutral.
A city regulation provided that once the test results were ―certified,‖ the Fire Department had to
promote from the group of applicants achieving the top three scores. All but one of the top
candidates was white (the exception was Hispanic). New Haven‘s Civil Service Board, charged
with certifying the results, held hearings in which the ―very significant disparate impact‖ was
raised by the City‘s corporation counsel, who ―strongly advocated against certifying the exam
results.‖69 Ricci, a white candidate, testified before the Board in favor of certifying the results,
pointing out that he had ―studied 8 to 13 hours a day to prepare for this test and [spent] over
$1,000 in funds to study‖ for it, including purchasing books and paying an acquaintance to read
them on tape because he was dyslexic. 70 The Board ultimately did not certify the promotional
exams results, relying on federal, state and local anti-discrimination laws and arguing that it had
a good- faith belief that Title VII mandated non-certification. When Ricci and some of the other
applicants sued, alleging violations of Title VII and their equal protectio n rights, the district court
upheld the City‘s decision and granted it summary judgment, finding that the defendants‘
preemptive ―motivation to avoid making promotions based on a test with a racially disparate
impact, even in a political context, [did] not, as a matter of law, constitute discriminatory
intent;‖71 and that there was no Equal Protection violation in the decision not to use the
promotional exam results. ―None of the defendants‘ expressed motives could suggest to a
reasonable juror that defendants acted ‗because of‘ animus against non- minority firefighters who
took‖ the exams. 72 In a two-page decision, the Second Circuit (a panel that included now
Supreme Court nominee Sonia Sotomayor) affirmed. 73 When the Supreme Court decided to hear
the case, IMLA filed an amicus brief in support of the City of New Haven.
In a 5-4 decision, the Supreme Court reversed and remanded, focusing only on the Title VII issue
and finding it unnecessary to deal with the Equal Protection arguments. Justice Kennedy
delivered the opinion of the Court, ruling that the City‘s action in discarding the tests violated
Title VII: a ―race-based action like the City‘s in this case is impermissible under Title VII unless
the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would
have been liable under the disparate- impact statute. The [City], we further determine, cannot
meet that threshold standard.‖74 Fear of litigation alone could not justify the City‘s reliance on
race to the detriment of individuals who passed the examinations and qualified for promotions.
Certain government actions to remedy past racial discrimination – actions that were themselves
based on race – were constitutional only where there was a ―strong basis in evidence‖ that the
remedial actions were necessary. Applying the strong-basis-in-evidence standard to Title VII,
before an employer could engage in intentional discrimination for the asserted purpose of
avoiding or remedying an unintentional, disparate impact, the employer had to have a strong
basis in evidence to believe it would be subject to disparate- impact liability if it failed to take the
race-conscious, discriminatory action. Here, the Board‘s hearings produced no strong evidence
of a disparate-impact violation. The majority of the Court concluded that all of the evidence
demonstrated that the City rejected the test results only because the higher-scoring candidates
Without some other justification, the Court held that this express, race-based decision- making
was prohibited. A threshold showing of a significant statistical disparity and nothing more was
far from the required strong basis in evidence that the City would have been liable under Title
VII had it certified the test results. That was because the City could be liable for disparate-
impact discrimination only if the exams at issue were not job-related and consistent with
business necessity, or if there existed an equally valid, less discriminatory alternative that served
the City‘s needs but that the City refused to adopt. Based on the record the parties developed
through discovery, there was no substantial basis in evidence that the test was deficient in either
respect. Accordingly, the City‘s race-based rejection of the test results could not satisfy the
―strong basis in evidence‖ standard. ―On this basis, we conclude that petitioners have met their
obligation to demonstrate that there is ‗no genuine issue as to any material fact‘ and that they are
‗entitled to judgment as a matter of law.‘‖75
The majority concluded by giving the City the green light to use the test results: ―[o]ur holding
today clarifies how Title VII applies to resolve competing expectations under the disparate-
treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a
disparate- impact suit, then in light of our holding today it should be clear that the City would
avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the
results, it would have been subject to disparate-treatment liability.‖76
However, the Court did not address the difficult question of how a public employer, complying
with the ―strong basis in evidence‖ standard, would fare under the Fourteenth Amendment and
its directive of ―equal protection of the laws.‖ Justice Scalia, in his concurring opinion, pointed
out that this case simply postponed ―the evil day on which the Court will have to confront the
question: Whether, or to what extent, are the disparate- impact provisions of Title VII of the Civil
Rights Act of 1964 consistent with the Constitution‘s guarantee of equal protection?‖ 77
Preemption and Consume r Protection Laws – Cuomo v. Clearing House Ass’n., L.L.C.
On June 29, the Court also released its decision in Cuomo v. Clearing House Ass’n., L.L.C.,78
addressing state fair- lending laws and possible preemption by the National Bank Act (NBA).
The ruling, another 5-4 split, arose out of letters, ―in lieu of subpoena,‖ that Eliot Spitzer, then
Attorney General for the State of New York, sent to national banks. These asked the banks to
provide non-public information about their lending practices to determine whether the banks had
violated the State‘s fair- lending laws. (Apparently, public data from the banks showed higher-
interest residential mortgage rates for minorities, as compared to white borrowers, suggesting
possible discrimination in violation of state fair- lending laws.) The Clearing House Association,
a banking trade group, sued to enjoin the informatio n request, claiming that the NBA and a
federal Office of the Comptroller of the Currency regulation, promulgated under the NBA,
prohibited that form of state law enforcement against national banks.
The NBA, Section 484(a), stated that: ―No national bank shall be subject to any visitorial powers
except as authorized by Federal law, vested in the courts of justice or such as shall be, or have
been exercised or directed by Congress or by either House thereof or by any committee of
Congress or of either House duly authorized.‖79 ―Visitorial powers,‖ though undefined,
generally referred to a right to oversee corporate affairs. The 2004 regulation provided, in part,
that States had no right ―to inspect, superintend, direct, regulate or compel compliance by a
national bank with respect to any law, regarding the content or conduct of activities authorized
for national banks under Federal law‖ (it did, however, provide that ―production of a bank‘s
records . . . may be required under normal judicial procedures‖). 80 The district court granted the
injunction, prohibiting the AG from enforcing New York fair-lending laws through demands for
records or judicial proceedings. The Second Circuit affirmed.
The Supreme Court, however, in a majority opinion written by Justice Scalia (joined by Justices
Stevens, Souter, Ginsburg, and Breyer), struck the regulation, finding it could not be upheld as a
reasonable interpretation of the NBA. Although there was ―necessarily some ambiguity as to
the meaning of the statutory term ‗visitorial powers,‘‖ and, under Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Court was to defer to an
agency‘s reasonable interpretation of a statute, this was insufficient to protect all of the
Comptroller‘s interpretations of the NBA from judicial scrutiny. 81 Here, it was evident that the
Act could not support the ―Comptroller‘s expansive regulation‖ to shield the banks from
―ordinary enforcement of the law.‖82 While a State might not be able to exercise general
supervision and control over a subsidiary of a national bank, this was something distinct from
law enforcement, and the NBA preempted only the former. Neither the Comptroller‘s
regulation, nor the Comptroller‘s interpretation of its regulation, comported with the NBA.
However, as ―visitorial powers‖ included ―any form of administrative oversight‖ that allowed a
sovereign ―to inspect books and records on demand, even if the process [was] mediated by a
court through prerogative writs or similar means,‖ 83 the ―threatened issuance of executive
subpoenas by the Attorney General‖ (issued on his own authority, and not as part of a civil or
criminal action) fell outside of the ―law enforcement‖ exemption from the ban on exercise of
supervisory power. Accordingly, the injunction below was affirmed as applied to the threatened
issuance of executive subpoenas.
2. U.S. SUPREME COURT – COMING ATTRACTIONS
Cases to be argued next term.
Snyder v. Phelps – First Amendment
On March 3, 2006, Matthew Snyder a service member was killed in the line of duty in Iraq. His
parents and family held memorial services in his hometown of Westminster, Maryland at the St.
John‘s Catholic Church. Members of the the Westboro Baptist Church of Topeka, Kansas
consists of about 60 members, of whom about 50 are members of one family related to the
pastor, Fred W. Phelps, Sr. Members of the congregation demonstrate near military funerals to
gather attention for their crusade against homosexuality and the Roman Catholic Church. They
came to Westminster to protest at Snyder‘s funeral service.
They carried signs saying: "America is Doomed," "God Hates the USA/Thank God for 9/11,"
"Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Don‘t Pray
for the USA," "Thank God for IEDs," "Priests Rape Boys," and "God Hates Fags."
The Snyder family sued the Westboro Baptist Church and the demonstrators on several theories,
three of which they proceeded to trial on: intrusion upon seclusion, intentional infliction of
emotional distress, and civil conspiracy. The jury awarded the Snyders a verdict of over $10
million, which the trial court reduced to $5 million. The Fourth Circuit reviewed the case under
rules generally applicable to defamation cases and set aside the verdict. It also awarded the
Church and Phelps attorneys‘ fees against the Snyders. The Supreme Court granted cert on the
Whether the prohibition of awarding damages to public figures to compensate for the intentional
infliction of emotional distress, under the Supreme Court‘s First Amendment precedents, applies
to a case involving two private persons regarding a private matter; (2) whether the freedom of
speech guaranteed by the First Amendment trumps its freedom of religion and peaceful
assembly; and (3) whether an individual attending a family member‘s funeral constitutes a
―captive audience‖ who is entitled to state protection from unwanted communication.
Sossamon. v. Texas – RLUIPA, Eleventh Ame ndment
―Whether an individual may sue a State or state official in his official capacity for damages for
violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et
seq. (2000 ed.).‖ The appeal arises from a Fifth Circuit case involving a prison inmate who sued
the State of Texas and state prison officials in their individual and official capacities, seeking
monetary damages for violations of his RLUIPA and other rights. RLUIPA defines a
―government‖ as including state and local governmental entities and any ―official of [such] an
entity‖ (§ 2000cc-5(4) (A)). The Fifth Circuit held, in conflict with the decisions of other courts,
that the Constitution (the Eleventh Amendment and the Spending Clause) prohibited Congress
from authorizing damages claims against states, or against state officials in their individual or
personal capacities, for violations of the statute.
United States Chamber of Comme rce v. Candelaria – Supre macy Clause, Immigration
Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is
invalid under a federal statute that expressly ―preempt[s] any State or local law imposing civil or
criminal sanctions (other than through licensing and similar laws) upon those who employ, or
recruit or refer for a fee for employment, unauthorized aliens‖; whether the Arizona statute,
which requires all employers to participate in a federal electronic employment verification
system, is preempted by a federal law that specifically makes that system voluntary; and whether
the Arizona statute is impliedly preempted because it undermines the ―comprehensive scheme‖
that Congress created to regulate the employment of aliens.
VOPA v. Reinhard- Eleventh Amendment
Whether the Eleventh Amendment categorically precludes an independent state agency from
bringing an action in federal court against state officials for prospective injunctive relief to
remedy a violation of federal law.
Connick v. Thompson – Prosecutorial Immunity
Does imposing liability for failing to train a prosecutor on a district attorney‘s office for a single
Brady violation contravene rigorous culpability and causation standards?
Los Angeles County v. Humphries – Civil Rights, policy, custom or practice
For a claim for declaratory relief against a local public entity, must the plaintiff demonstrate that
the constitutional violation was the result of a policy, custom or practice attributable to the local
3. F EDERAL LEGISLATIVE ISSUES
H.R. 413, the Public Safety Employer-Employee Cooperation Act of 2009 – Mandatory
H.R. 413, introduced in January 2009 and sponsored by Representatives Dale Kildee (D-MI) and
John J. Duncan, Jr. (R-TN), would impose a regime, administered by the Federal Labor
Relations Authority (FLRA), of mandatory collective bargaining rights for public safety officers
employed by States and their political subdivisions. (Previous versions of this bill include H.R.
980 and S. 2123, the Public Safety Employer-Employee Cooperation Act of 2007, introduced but
not passed in 2007).
H.R. 413 defines ―public safety officer‖ as an ―employee of a public safety agency who is a law
enforcement officer, a firefighter, or emergency medical services personnel,‖ but not permanent
supervisory or management employees. A ―public safety agency‖ is defined to include a State,
political subdivision of a State, and the District of Columbia. Among other things, H.R. 413
requires the FLRA to review existing State law and determine if that law would adequately and
―substantially provide‖ for the following rights and responsibilities for covered employees:
$ the right to form and join a labor organization, that is, or seeks to be, recognized as the
exclusive bargaining representative of such employees;
$ requiring public safety employers to recognize such labor organizations, to agree to
bargain with the labor organization, and to commit any agreements to writing in a
contract or memorandum of understanding;
$ providing for bargaining over hours, wages, and terms and conditions of employment;
$ making available an interest impasse resolution mechanism, such as fact-finding,
mediation, arbitration, or comparable procedures; and
$ a requirement of enforcement through State courts of ―all rights, responsibilities, and
protections provided by State law,‖ including any written contract or memorandum of
If the FLRA finds that the existing State law does not meet these standards, it ―shall‖ issue
regulations establishing the rights and responsibilities for public safety employers and employees
in that State; further; it is authorized to ―take such other actions as are necessary and appropriate
to effectively administer this Act.‖
IMLA and other organizations – including the National League of Cities and the International
Public Management Associations for Human Resources – oppose this proposed legislation
because it aims to federalize what has traditionally been a state and local government
responsibility: determining the terms and conditions of public safety employment. States and
local governments are in the best position to make decisions about whether the collective
bargaining process will benefit their constituents, and collective bargaining for these employees
is by no means universal: according to one source, 35 states and the District of Columbia allow
some form of collective bargaining, but 15 states have chosen not to mandate it. 84 Collective
bargaining rights for public safety officers are best left to be resolved at the local level – given
the specific labor market and what constitutes a competitive salary and benefits in that locality –
and there is no compelling reason for the federal government to substitute the FLRA in this area
as the entity in charge of establishing the rules and procedures for public safety emplo yment.
Further, most states and local governments already operate within a civil service system, and the
proposed legislation would interfere with these existing civil service laws. Moreover, the law
would create a disparity between federal public safety officers and those at the state and local
level: federal public safety officers do not have the right to negotiate wages and conditions of
Bill Status: The bill was referred to the House Committee on Education and Labor in January
2009 and in early March 2010, the Committee held hearings.
Section 511 of the Tax Increase Prevention and Reconciliation Act of 2005 (P.L. 109 -222)
H.R. 4297, the Tax Increase Prevention and Reconciliation Act of 2006, was signed into law as
P.L. 109-222 on May 17, 2006. Section 511 of this statute originally required that, as of January
01, 2011, federal, state and local governments withhold three percent from payments to
contractors for goods and services, and remit this to the Internal Revenue Service (IRS). The
recent stimulus package – the American Recovery and Reinvestment Act – provides for a one-
year delay in the law‘s enactment, changing the effective date to January 01, 2012. The law
applies to any government jurisdiction that spends more than $100 million annually on goods
and services, but will not apply to the private sector. There is no minimum transaction threshold,
and the only vendors or contractors that are exempted are other governments or nonprofit entities
and government employees. 85
This government ―withholding tax‖ tax for goods and services contracts is something that IMLA
and other organizations – the National Association of Counties, the Government Finance
Officers Association, and the National Council for Public Procurement and Contrac ting – have
worked to have repealed, on the basis that the requirement represents a significant unfunded
mandate on state and local governments, and violates the Unfunded Mandates Reform Act.
Implementing the law is sure to cause significant administrative and financial burdens (including
the need to make costly programming changes to financial and accounting systems, and to keep
documentation and reports), at a cost that one source estimates to be $62 million annually. 86
This financial burden is one that localities cannot afford in these constrained economic times.
According to the National Association of Counties, the law:
will also likely discourage contractors from bidding on government contracts and
increase the costs of procurement. Many of its req uirements are unworkable as written
and will require the Treasury Department to issue ‗administrability rules.‘ This mandate
is particularly egregious because it was inserted into the final version of an omnibus tax
bill that had already passed both the House and Senate and was never subject to a formal
vote, hearings or consultation with any state and local government officials or their
national organizations. 87
For their part, contractors complain that the withholding applies to the total contract, not to the
net revenue generated from the project; is based on revenues from government payments with no
relationship to a company‘s taxable income; and that contractors are likely to see ―significant
amounts of their operating funds become unavailable for periods that could exceed 16 months,‖
with a particular impact on small businesses. 88
Previous unsuccessful bills to repeal Section 511 and the three percent withholding requirement.
include H.R. 1023 (February 2007), introduced in the House by Representatives Wally Herger
(R-CA) and Kendrick Meek (D-FL) and referred to the House Committee on Ways and Means;
and S. 777 (March 2007), introduced in the Senate by Senator Larry Craig (R-ID) and referred to
the Senate Committee on Finance. On January 07, 2009, Rep. Meek introduced H.R.275, and on
January 21, 2009, Sen. Arlen Spector introduced S. 292, The Withholding Tax Relief Act of
Bill Status: H.R. 1023 was referred to the House Committee on Ways and Means in January and
there has been no subsequent activity. As of late March, S. 292 had been read twice and referred
to the Committee on Finance, with no further activity.
As it has done since 1935, the International Municipal Lawyers Association continues to act as a
strong advocate and resource for local government attorneys in these and coming matters before
the Nation‘s courts and legislatures.
For additional information about IMLA‘s legal and legislative advocacy – including how to
involve IMLA as an amicus – please contact Chuck Thompson, IMLA‘s Executive Director and
General Counsel, at email@example.com.
1. 129 S. Ct. 1125 (Feb. 25, 2009).
2. See The Aphorisms of Summum and the Ten Commandments at
3. Summum had raised, but abandoned, an Establishment Clause argument and no federal
Establishment Clause argument was raised in the Summum compla int. Oral Argument
Transcript, p. 2.
4. Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007). For a more detailed
discussion about the background to the case, see the author‘s previous article in the winter issue
of the ABA‘s State & Local Law News.
5. 499 F.3d at 1175 (Justice McConnell, joined by Justice Gorsuch, dissenting from the denial of
rehearing en banc).
6. Brief of Amicus Curiae International Municipal Lawyers Association in Support of
Petitioners, 2008 WL 2550618 (U.S. June 23, 2008).
7. Id., Appendix B.
8. Id., Appendix D.
9.129 S. Ct. 1125, 1131 (Feb. 25, 2009) (citing Bd. of Regents of Univ. of Wis. System v.
Southworth, 529 U.S. 217, 229 (2000)).
10. Id. at 1132.
11. Id. at 1133.
13. Id. at 1134.
15. The Court referred to the fact that the statue was given to the United States by the French
Republic as an expression of ―republican solidarity and friendship,‖ but later came to be viewed
as a ―beacon welcoming immigrants to a land of freedom.‖ Id. at 1136-37.
16. Id. at 1138.
18. 545 U. S. 677 (2005) (Ten Commandments monuments had an ―undeniable historical
meaning,‖ not just a religious one).
19. 129 S. Ct. at 1139 (Justice Scalia, with Justice Thomas concurring).
20. Id. at 1141.
21. Id. at 1142.
22. Id. at 1139.
23. Id. at 1140.
24. Following its ruling, the Supreme Court directed the Tenth Circuit Court of Appeals to apply
the ruling to another, similar case in the state, involving Summum and the City of Duchesne.
Duchesne City v. Summum, No. 07-690, was on hold pending a decision in the Court‘s ruling in
the Pleasant Grove City case, and involved a request by the Summum religious group to place a
monument of its ―Seven Aphorisms‖ in a city park. The group had also asked the City to
transfer, to Summum, title to land in the park for its monument, because the City had previously
transferred a plot of land in the park containing a Ten Commandments monument to the
Duchesne Lions Club. On March 02, the Supreme Court granted the petition for a writ of
certiorari and remanded the case back for further consideration in light of the Pleasant Grove
City ruling, and on April 07, the Tenth Circuit remanded the case to the district court to conduct
further proceedings consistent with the Supreme Court‘s decision.
25. For more on this case, Mary Jean Dolan, who authored the IMLA amicus brief, writes about
the Summum case in the July/August issue of IMLA‘s Municipal Lawyer magazine.
26. Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008), cert. granted, Salazar v. Buono, 129
S.Ct. 1313 (U.S. Feb. 23, 2009) (No. 08-472).
27. Buono v. Kempthorne, 502 F.3d 1069, 1082-86 (9th Cir. 2007) (noting that ―carving out a
tiny parcel of property in the midst of this vast Preserve – like a donut hole with the cross atop it
– will do nothing to minimize the impermissible governmental endorsement.‖ Id. at 1086).
28. Pearson v. Callahan, 129 S.Ct. 808 (2009).
29. Id. at 817.
30. Id. at 818.
31. Herring v. U.S., 129 S.Ct. 695 (2009).
32. Id. at 702.
33. Arizona v. Johnson, 129 S.Ct. 781, 785 (2009).
34. Id. at 788.
35. Crawford v. Metro. Gov‘t of Nashville and Davidson County, 129 S.Ct. 846 (2009).
36. Id. at 851.
38. Id. at 853-54.
39. Van De Kamp v. Goldstein, 129 S.Ct. 855 (2009).
40. Id. at 862.
41. Id. at 864.
42. Locke v. Karass, 129 S.Ct. 798 (2009).
43. Ysursa v. Pocatello Educ. Ass‘n, 129 S.Ct. 1093 (2009).
44. Id. at 1099.
45. Id. at 1100.
46. Arizona v. Gant, --- S.Ct.---, 2009 WL 1045962 at *3.
47. 453 U.S. 454, 455 (1981) (police may search the passenger compartment of a vehicle and any
containers therein as a contemporaneous incident of a recent occupant‘s lawful arrest).
48. Gant, 2009 WL 1045962 at *7.
50. Id. at *2.
51. 42 U.S.C. §9601 et. seq. (West 2009).
52. Burlington Northern and Santa Fe Ry. Co. v. U.S., 129 S.Ct. 1870, 1881 (2009).
53. Id. at 1880.
54. Northwest Austin Mun. Utility Dist. Number One v. Holder, 2009 WL 1738645 (U.S. June
55. The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, §2, 120 Stat. 577.
56. 573 F. Supp.2d 221 (D.C. Cir. 2008).
57. 2009 WL 1738645 at * 10.
58. Id. at *13.
60. Id. at *7.
61. Id. at *8.
63. Id. at *14.
64. Id. at *16.
65. Id. at *22.
66. Id. at *23.
67. Id. at *24.
68. 2009 WL 1835138 (U.S. June 29, 2009).
69. 554 F. Supp.2d 142, 150 (D. Conn. 2006).
70. Id. at 146. Ricci scored sixth highest on the exam, although at the hearings, none of the
results were identified by name, and none of the candidates knew where they had placed.
71. Id. at 160.
72. Id. at 162.
73. 530 F.3d 87 (2d Cir. 2008). The court later denied an application for rehearing and rehearing
en banc; see 530 F.3d 88 (2d Cir. 2008).
74. 2009 WL 1835138 at * 4 (U.S. June 29, 2009).
75. Id. at * 18.
76. Id. at * 22.
78. 2009 WL 1835148 (U.S. June 29, 2009).
79. 12 U.S.C. § 484(a) (West 2009).
80. 12 CFR § 7.4000 (2009).
81. 2009 WL 1835148 at *4.
83.Id. at * 10.
84. NLC Fact Sheet, Reject Mandatory Collective Bargaining, undated.
85. NACo, Toolkit on Repeal of New Non-Wage Withholding Requirement, undated.
86. GFOA Issue Brief, Withholding Requirement on Government Payments and Other General
Tax Issues (Feb. 2009) states that ―[i]n 2006, the Congressional Budget Office estimated the cost
to state and local governments for administering this provision to be $62 million per year.‖
87. NACo Fact Sheet, Repeal Three Percent Withholding Tax on County Purchases (March
88. National Defense Industrial Association, Little Known Legislation Takes Federal
Contractors By Surprise (March 2007).