Supreme Court and Risk Pools

Transcription

1 Supreme Court and Risk Pools Lisa Soronen State and Local Legal Center Overview of Presentation What you need to know about this Supreme Court term How does the Supreme Court come down on issues that matter to state and local government and school district risk pools? What You Need to Know About this Term Most terms the Supreme Court decides 2-3 big cases Some terms the Supreme Court decides no big cases (last term) This term the Supreme Court will decide up to 6 big cases One of these cases has significant financial implications for states, local governments, and school districts 1

2 South Dakota v. Wayfair Issue: may states and local governments may require retailers with no instate physical presence to collect sales tax? GAO estimates in November 2017 states and local governments are losing between $8 and $13 billion a year Supreme Court must overturn precedent to rule in favor of South Dakota Look for a decision the week of June 18 th For Risk Pools A Conservative Court Is Good Qualified immunity Employment Closing the courthouse door Federalism and preemption* Allowing religion in public spaces Bad Land use Taxes Free speech* On the Issues that Matter to You Qualified immunity Land use Employment Speech School cases 2

3 Qualified Immunity State and local government officials can be sued for money damages in their individual capacity if they violate a person s constitutional rights Qualified immunity protects government officials from such lawsuits where the law they violated isn t clearly established Standard is very favorable to state and local government employees It protects all but the plainly incompetent or those who knowingly violate the law Qualified Immunity Most cases involve police officers using force Other examples: School administrator disciplining students for speech Michigan Liquor Control Commissioners banning the Raging Bitch beer label City council member deleting Facebook comments from an angry citizen Police officers engaging in all kinds of other activities Qualified Immunity Winning streak like no other In only two cases since 1982 has the Supreme Court held that police officers have violated clearly established law I can think of two cases in the last six years where the Court didn t grant (or deny) qualified immunity to police officer In the last few years the Supreme Court has reversed a handful of lower court cases denying police officers qualified immunity each term 3

4 Qualified Immunity Why the volume of cases? Lots of litigation on the issue Lower courts often get qualified immunity wrong (9 th and 6 th Circuits) Court likes the topic Qualified Immunity Why the victories? Law is very favorable to state and local governments and school districts Few cases (especially ones involving the police) have the same facts so the law is rarely clearly established Court is sympathetic of police officers who must make split-second decisions where their lives are on the line Mullenix v. Luna Decided in 2015 Without oral argument Illustrates the problem the Court typically finds in these cases: lower courts fail to look at the specific facts of the case and ask if it the law was clearly established (here that the police officer could not use force) 4

5 Mullenix v. Luna You can t make this stuff up Leija led officers on an 18-minute chase at speeds between 85 and 110 miles an hour Called police twice saying he had a gun and would shoot police officers if they did not abandon their pursuit While officers set up spike strips under an overpass, Officer Mullenix asked his supervisor via dispatch if he thought shooting at Leija s car to disable it was worth doing His supervisor told Mullenix to wait to see if the spike strips worked (Court assumed Mullenix heard his supervisor) Mullenix learned an officer was in harm s way from Leija beneath the overpass Mullenix shot at Leija s vehicle six times killing him but not disabling his vehicle Mullenix v. Luna The Fifth Circuit denied qualified immunity Police officers may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officers or others SCOTUS: too general of an inquiry In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances beyond debate. Mullenix v. Luna Sotomayor dissent No training No supervisor approval Spike strips seconds later Scalia concurrence No deadly force here! Mullenix wasn t actually trying to kill Leija 5

6 Mullenix v. Luna Culturally interesting Made the news Post-Ferguson SCOTUS isn t loosening up qualified immunity? Does this case represent the outer limit on qualified immunity in force cases? IMLA didn t file an amicus brief Officer ignored his supervisor Qualified Immunity Legal scholars have been attacking qualified immunity Is Qualified Immunity Unlawful? William Baude Qualified immunity should only be granted if the immunity in question existed in 1871 Very few immunities existed in 1871 How Qualified Immunity Fails, Joanna Schwartz Supreme Court grants government officials qualified immunity to save them from the hassle and expense of going through discovery and a trial Qualified immunity is rarely raised at the motion to dismiss stage and rarely granted; it is raised more often at summary judgment but rarely granted Qualified Immunity Are the Justices listening to the academics? In Ziglar v. Abbasi (2016) the Court granted qualified immunity to a number of high level federal executive agency officials related to a claim they conspired to violate the equal protection rights of persons held on suspicion of a connection to terrorism after September 11, 2001 Justice Thomas cited to Baude s article stating that the Court needs to focus in qualified immunity cases on whether the immunity existed at common law in 1871 In District of Columbia v. Wesby (2017) all nine Justices voted to give police officers qualified immunity on a Fourth Amendment false arrest claim; Justice Thomas made no inquiry into immunities available to police officers in 1871 for false arrest 6

7 Land Use Court is not taking a ton of cases in this space Two categories Traditional takings cases Breadth of federal environmental laws Courts impulses in this area lean conservative Hurts state and local governments in takings cases Helps in cases involving federal environmental law Land Use The Fifth Amendment of the United States Constitution includes a provision known as the Takings Clause, which states that "private property [shall not] be taken for public use, without just compensation Issues: Is this a taking? What kind of taking is it/what rules apply to this taking? Traditional Takings Cases Court has been taking one about every other year Likely to be 5-4 losses for state and local governments Koontz v. St. Johns River Water Management District (2013) If a local government conditions granting a permit on giving property or money the condition must be is proportional and there must be a reasonable nexus between the condition and the development permit 7

8 Murr v. Wisconsin Issue: may two nonconforming lots under common ownership adjacent to each other be viewed as one for purposes of takings analysis Supreme Court rules generally yes 5-3 decision in 2016 Justice Kennedy wrote the majority opinion First takings win for state and local governments since 2010 Murr v. Wisconsin Justice Kennedy cited the SLLC brief twice in his opinion: The merger provision here is... a legitimate exercise of government power, as reflected by its consistency with a long history of state and local merger regulations that originated nearly a century ago. Again citing the SLLC s brief, the Court further noted that focusing only on lot lines would frustrate municipalities ability to implement minimum lot size regulations by casting doubt on the many merger provisions that exist nationwide today. Federal Environmental Law Cases Tons of federal environmental laws Clean Water Act Clean Air Act Endangered Species Act 8

9 Federal Environmental Law Cases How do state and local governments get involved? Many of these laws significantly limit state and local government land use State and local governments may be sued for violating these laws State and local governments may sue the federal government over its interpretation of these laws State and local governments may have an interest in how lawsuits involving private parties turn out Weyerhaeuser Company v. United States Fish and Wildlife Service Cases will be decided next term Perfect example of a case where the conservatives in particular are going to be suspicious of the use of federal power Critical habitat designation under the Endangered Species Act Weyerhaeuser Company v. United States Fish and Wildlife Service Dusky gopher frog Lived in Louisiana at one time No longer lives there Can t live there now barring a radical change in the land s use by its private owners Nevertheless some of Weyerhaeuser s property has been designated as a critical habitat 9

10 Weyerhaeuser Company v. United States Fish and Wildlife Service St. Tammany s parish amicus brief Very near New Orleans Pleads we need this tax base San Juan County amicus brief Fish and Wildlife gerrymandered the critical habitat designation for the sage grouse to exclude millions of acres of federal land; 35% of all the private land in San Juan County is now designated a critical habitat Land Use Small shift to the right or the left will impact the outcome of these cases The Court is due another takings case or two Employment Three categories Public Big Small Private that affect public employers (ADA, FMLA, Title VII) Private that do affect not public employees (ERISA, class actions, some FLSA) 10

11 Employment Court isn t taking a lot of employment cases period Takes one public employment case every other term Court leans conservative in employment cases (especially big public employment cases) Very big issue on the horizon Public Employment Big Cases Most recent big public employment cases were all wins for state and local governments and school districts Borough of Duryea v. Guarnieri (2011)(First Amendment retaliation Petitions Clause claims not about a matter of public concern are disallowed) Ontario v. Quon (2010)(City did not violate employee s Fourth Amendment rights because its search of the employee s text messages was reasonable) Engquist v. Oregon Dept. of Agriculture (2008)(public employees may not bringing class-of-one equal protection claims) Garcetti v. Ceballos (2006)(public employees have no First Amendment protection for speech pursuant to their ordinary job duties) Public Employment Small Cases Most recent small public employment cases were loses for state and local governments and school districts Lane v. Franks (2014)(testimony in a criminal prosecution by a government employee about fraud in the program where he works is protected by the First Amendment) Heffernan v. City of Paterson, New Jersey (2016)(public employer violates the First Amendment when it acts on a mistaken belief that an employee engaged in First Amendment protected political activity) 11

12 Private Employment Cases Affecting Public Employer Even fewer cases why? More recent bigger cases Vance v. Ball State University (2013)(definition of supervisor under Title VII University of Texas Southwestern Medical Center v. Nassar (2013)(proving causation under Title VII) More recently cases Young v. UPS (2015)( pregnancy discrimination) EEOC v. Abercrombie & Fitch (2015)(Title VII religious accommodation case) Sexual Orientation Protected by Title VII? Hively v. Ivy Tech Community College (7 th Cir.) (employees may bring sexual orientation discrimination claims under Title VII)(not appealed to SCOTUS) Evans v. Georgia Regional Hospital (en banc Eleventh Circuit refused to reconsider its ruling to the contrary to the 7 th Circuit)(SCOTUS denied cert) Zarda v. Altitude Express (waiting for an en banc 2 nd Circuit decision on whether to the court will overturn precedent holding that employees may not bring sexual orientation discrimination claims under Title VII) Free Speech Roberts Court is the most pro-free speech Court of all time? Governments (federal, state, and local) regulate speech as a result lose these cases right and left Roberts Court takes a ton a free speech cases Most of these case are not

13 First Amendment is More than Free Speech Free exercise of religion, Establishment Clause, freedom of association, etc. Court will decide four other First Amendment cases this term Janus v. AFSCME do public sector fair share laws violate the First Amendment? Trump v. Hawaii does the travel ban violate the Establishment Clause? Bottom of the Barrel Reed v. Town of Gilbert (2015) Strict scrutiny applies to content-based speech Content-based speech is defined very broadly Unanimous Sign codes, panhandling ordinance, etc. are in trouble Million dollar question: does Reed apply to commercial speech? Be As Obnoxious As You Want to Be Snyder v. Phelps (2011)(First Amendment protects from tort liability those who peacefully protest on a matter of public concern near a military service member s funeral) Brown v. Entertainment Merchants Association (2011)(California may not ban the sale or rental of violent video games to minors) United States v. Stevens (2010)(a federal statute criminalizing electronic depictions of animal cruelty is unconstitutional) 13

14 Be As Obnoxious As You Want to Be Destined to be a loser to be decided this term Minnesota Voters Alliance v. Mansky--may states banning political apparel at polling places County officials were sued in this case States with similar laws: Delaware, Kansas, Montana, New York, South Carolina, Tennessee, Texas, and Vermont Except in School Morse v. Frederick (2007)(school officials may prohibit students from displaying messages promoting illegal drug use) We are due another student free speech case (disciplining a student for offcampus speech perhaps?) Government Speech State and local government have been able to rely on the government speech doctrine to say what they want to say Pleasant Grove City v. Summum (2009)(monuments in a city park are government speech) Walker v. Sons of Confederate Veterans (2015)(messages on license plates are government speech) Winning streak ended last term Matal v. Tam (2016)(trademarks aren t government speech) 14

15 Speech Issue to Watch Loudon County Board Chair banned someone from her Facebook page for 12 hours Headed to the Fourth Circuit getting national attention The district court concluded, however, that under the totality of the circumstances, Randall was acting under the color of state law in maintaining the Facebook page Chair Phyllis J. Randall and banning the Plaintiff from that page violated the First Amendment in her individual capacity. Regarding the First Amendment claim, the court concluded that Randall had created a public forum with her Facebook page. The court did not determine what type of forum (traditional, limited, etc.) because it found that she had engaged in viewpoint discrimination by banning the Plaintiff from her page. Davison v. Loudoun County Board of Supervisors Schools and the Supreme Court The 2000s were a heady time BONG HiTS 4 JESUS Strip searching students Too many special education cases to mention 2010s radio silence until Endrew F. v. Douglas County School District Unanimous holding: public school districts must offer students with disabilities an individual education plan (IEP) reasonably calculated to enable a child to make progress appropriate in light of the child s circumstances Court rejects Tenth Circuit s holding that an IEP must merely confer some educational benefit that is more than de minimis 15

16 Endrew F. v. Douglas County School District What if a child with a disability isn t able to advance from grade to grade? In Endrew F. the Court stated that if progressing smoothly through the regular curriculum isn t a reasonable prospect for a child, his IEP need not aim for grade level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance. Endrew F. v. Douglas County School District This ruling will cost states and school districts money Some school districts will have to offer a more rigorous education to some special education students Courts may be more willing to find a denial of FAPE than before Parents have more bargaining power in the IEP development process District may agree feel they have to agree to more private placements Practice in Some States will have to Change Biggest change in law Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) First (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) Fourth (Maryland, North Carolina, South Carolina, Virginia, West Virginia) Seventh (Illinois, Indiana, Wisconsin) Eighth (Arkansas, Iowa, Minnesota, Missouri, and Nebraska) Smallest change in Third (Delaware, New Jersey, Pennsylvania, Sixth (Michigan, Ohio, Tennessee, Kentucky) 16

17 Transgender Bathroom Title IX prohibits school districts that receive federal funds from discriminating on the basis of sex Issue: do transgender students have a right under Title IX to use the bathroom consistent with their gender identity? Gloucester County School Board v. G.G. Last term the Supreme Court agreed to review a 4 th Circuit decision in favor of a transgender student 4 th Circuit decision relied on a Department of Education letter saying Title IX allows transgender students to use the bathroom consistent with their gender identity Trump administration pulled the letter (and takes no position on the question) Supreme Court told the 4 th Circuit to decide the case again without the letter Kenosha Unified School District No. 1 Board of Education v. Whitaker Seventh Circuit held transgender students have a right under Title IX to use the bathroom consistent with their gender identity Interpreted Title IX without considering DOE s interpretation (or lack thereof) in letters Cert petition filed; earliest case could be heard is next term 17

18 SLLC Supreme Court Midterm webinar March 15 1:00 PM Eastern time Free, open to anyone, recorded Register on the State and Local Legal Center s website! Questions? Thanks for attending! 18