by Lisa Soronen
June 4th was a good day for state legislatures and the State and Local Legal Center (SLLC). The Supreme Court issued opinions in two cases in which the State and Local Legal Center had filed amicus briefs: Armour v. Indianapolis and Reichle v. Howards. NCSL signed onto the brief in Armour v. Indianapolis, which was cited in the ruling – a rare and exciting event.
In Armour v. Indianapolis, the Court held 6-3 that Indianapolis didn't violate the Equal Protection Clause of the U.S. Constitution when it forgave the debt of those who paid for sewer upgrades in installments but not the debt of those who paid in lump sums. The Court concluded Indianapolis had a rational basis for this decision, which was made after the city changed its method of funding sewer upgrades – namely avoiding the administrative inconvenience of having to continue to collect monthly payments for a discontinued program that were as low as $25 a month for 30 years. Justice Breyer cited the Legal Center's brief that described exactly what Indianapolis would have to do to keep collecting installment payments and what it would cost.
Why is this case so great for state legislatures? Lyle Denniston of SCOTUS blog says the opinion was "full of admonitions against courts' second-guessing of state and local tax policy."
In the unanimous decision in Reichle v. Howards, the Court granted qualified immunity to two Secret Service agents who allegedly arrested someone in retaliation for his political speech, when the agents had probable cause to arrest him for committing a federal crime. Howards told the vice president his "policies in Iraq are disgusting" and then touched him. When a Secret Service agent questioned Howards about assaulting or touching the vice president, he denied it and was arrested. Making a materially false statement to a federal official violates a federal statute. Howards sued the agents claiming they violated his First Amendment rights by arresting him for his speech. Government official are immune from lawsuits claiming they have violated someone's constitutional or statutory rights if the law violated wasn't "clearly established."
According to the Court, it was not "clearly established" at the time of the arrest that an arrest supported by probable cause could violate the First Amendment. Justice Thomas, writing for the Court, noted that the Supreme Court has never held that a person has a First Amendment right to be free from a retaliatory arrest supported by probable cause.
While this case is a win, it also is a disappointment. The Court accepted, but declined to decide, the underlying legal issue in this case: whether probable cause bars First Amendment retaliatory arrest claims. Why? I think Mike Dorf of Dorf on Law had it correct when he said, "One strong possibility is that while the Court was able to reach agreement (all eight participating Justices, with Justice Kagan recused) on qualified immunity, there was no consensus on the merits."
To learn more about these and other big cases from this term, sign up for the SLLC's Supreme Court webinar on July 19. It will cover all cases from the Supreme Court's October 2011 term affecting state and local government. Speakers include Paul Clement who argued Armour v. Indianapolis (and the Affordable Care Act and the Arizona immigration cases) and Patricia Millett who has argued more cases before the Supreme Court than any other woman.
Lisa Soronen is executive director of the State and Local Legal Center.