The Thicket at State Legislatures

Supreme Court Likely to Uphold Immigration Status Check

by Lisa Soronen

Yesterday the Supreme Court heard oral arguments in Arizona v. United States. The Court will be deciding whether federal law preempts four provisions of Arizona’s immigration law. As NCSL’s Ann Morse pointed out to CNN, “[e]very state is dealing with immigration,” making this case relevant to state legislatures nationally. See if your state’s immigration law is similar to Arizona’s here.

Supreme Court reporters and observers seem to agree the Court will uphold the portion of Arizona’s law requiring police to check the immigration status of anyone stopped or arrested when there is “reasonable suspicion” the person is here unlawfully. If the federal government does not want to pursue deporting someone, Justice Roberts pointed out, it doesn’t have to. But several justices seemed concerned about the amount of time it would take to confirm someone’s immigration status.

Tom Goldstein predicts, in a SCOTUS blog posting, a possible unanimous ruling in favor of Arizona’s law, on the above issue as well as on whether immigrants can be arrested without a warrant if there is probable cause to believe they have committed a removable offense.

Because the Court focused so much time on the issue of police checking immigration status, reporters and court watchers seem less certain about the fate of the law’s provisions making it a crime for non-citizens to not carry documents proving they are here lawfully to seek work or hold a job. Both liberal and conservative justices appeared skeptical of these provisions.

Everyone agrees Justice Scalia is Arizona’s most staunch supporter. The Wall Street Journal blog described Kennedy as “not the easiest to read on the bench today.” Justice Kagan recused herself from the case. If the Court votes 4-4 on any issue, the Ninth Circuit’s ruling (against Arizona on all provisions) will stand.

According to NPR, George Washington Law Professor Jonathan Turley calls this Supreme Court term “the most significant term in the history of the court in defining federalism.” Stay tuned ... the Court will rule these cases by the last week of June.

Lisa Soronen is the executive director of the State & Local Legal Center in Washington, D.C.

Please Fill Out Your Name, SS Number and Facebook Password

By Meagan Dorsch

Updated post on this issue

When applying for your next job, you may need to submit the username and password for your personal social media accounts along with a cover letter, résumé and list of references.

Several companies, and government agencies, have been challenged for allegedly asking job applicants to provide passwords to their personal social media accounts as a condition of employment. This week, U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) asked the U.S. Department of Justice  and the Equal Employment Opportunity Commission to look into the matter.

This issue had already grabbed the attention of state lawmakers.  According to the National Conference of State Legislatures, lawmakers in a handful of states have introduced legislation to prohibit such actions. The state of Maryland is set to be the first state to enact this legislation prohibiting this action. A separate bill passed the House in Illinois, and concern over this practice might even prompt federal legislation.

Why do employers want to see what you do on social media? Presumably, they are looking for the “real” you, making sure that those who work in public agencies or with children are not engaging in inappropriate behavior or that those in a high profile position (who might represent a company) do not have inappropriate material floating around online.

What appears to be at the heart of this issue for state and federal lawmakers are privacy and employment laws, both of which could be violated if a person provides passwords to personal accounts. There is also the concern over businesses violating the Federal Stored Communications Act. Even Facebook, the company that has been at the heart of several privacy issues, says providing this information goes against its user agreement. The company has even threatened to sue employers that violate its policy.

Senators Blumenthal and Schumer have called this a disturbing trend, one that has the attention of Congress, state legislatures and the public. For some, it’s an issue of privacy; others see the issue as an infringement of rights. As one person commented on a recent thread, if an employee is asked for his/her password, is it fair to demand it from the company as well? 

Photo from the Daily Press & Argus article in Livingston Daily.com. 

Updated April 11, 2012 to include information regarding Maryland's bill.

Cameras in the Courtroom Go Viral

Cameras are already allowed in many state courtrooms, now an effort is underway in the U.S. Senate to broadcast Supreme Court hearings

By Alex Fitzsimmons

The U.S. Supreme Court enforces a strict policy on camera use during oral arguments: They’re not allowed, period.

States, on the other hand, have adopted more nuanced approaches. High courts in every state allow some form of camera use during court proceedings, and states are steadily moving in a pro-camera direction. Several states, including Connecticut, Minnesota, and South Dakota, have made changes within the last year.

Superior Court judges in Connecticut approved significant changes to the coverage of criminal cases. Approved electronic media outlets are now permitted to record any criminal proceeding that are open to the public and on the record. Exceptions include jury selection and proceedings for sexual assault. These changes took effect Jan. 1, 2012.

In Minnesota, the state Supreme Court created a two-year pilot program authorizing cameras in the courtroom for civil cases. Only the judge can allow or prohibit the cameras. The pilot program, which took effect July 1, 2011, excludes criminal cases.

Federal Court Rejects Texas Legislature's Claim of Legislative Privilege

by Karl Kurtz

Earlier this week a federal district court judge in Washington, D.C. ordered the Texas Legislature to hand over documents that it had withheld in a dispute over redistricting maps. The Justice Department and plaintiffs sought access to the documents prepared by legislators and legislative staff. The Legislature claimed that the documents were protected by legislative privilege and an attorney-client relationship between the staff of the Texas Legislative Council and the members of the Legislature.

Legislative privilege is the doctrine found in the federal Constitution and 43 state constitutions that provides legal protection to legislators in the conduct of legislative business. The intent is to shield them from threats of judicial or executive intervention in their work.

The court rejected the Texas claim of legislative privilege, saying that the Legislature had failed to cite any statute or case law that would justify the privilege. Moreover, the court said that while it recognizes the confidentiality between staff and legislators provided for in the Texas Government Code, that confidentiality does not constitute an attorney-client relationship. Finally, the court ruled that communications between legislative staff and members about the case had to be disclosed because the legislators involved did not claim privilege (the court did not say how it would have ruled if they had claimed privilege).

The Texas Redistricting blog has a more extensive summary of the case and links to the court's decision.

To my inexpert and non-legal eyes, this case seems to hinge mainly on the language of Texas statutes and case law, so it may not have major implications for questions of legislative privilege and attorney-client relationships in other states. However, at the very least it seems to be a case of a federal court joining with state courts in a tendency to side with government openness and transparency against the competing value of the right of legislatures to maintain independent decision-making processes. Ohio State law professor Steven F. Huefner reports in a 2003 law review article, "The Neglected Value of the Legislative Privilege in State Legislatures":

While some of these states' [legislative privilege] provisions have never been applied, recent judicial interpretations in other states have departed from settled federal interpretations of the legislative privilege, failing to apply it broadly to protect the legislative process and instead unduly favoring ideals of open government.

He goes on to conclude:

...To protect representative democracy, the legislative privilege merits a more robust application at the state level than some state courts have been willing to give it.

It now appears that Prof. Huefner can add the federal courts to his plea.

In addition to the Huefner article, my colleague, Kae Warnock has compiled some useful resources on the subject of legislative privilege, legislative attorney-client relationships and confidentiality:

• "Legislative Immunity in Minnesota" by former Senate Counsel Peter Wattson includes extensive citations of federal and state case law (not just Minnesota).
• "Representing Representatives: Ethical Considerations for the Legislature's Attorneys," a 2003 law review article by former Wisconsin staffer Rob Marchant
• Kae's own informal compilation of confidentiality policies and attorney-client privilege statutes and case law.

Supreme Court Takes on Federalism Cases: Big Impact on States

By Jon Kuhl

The U.S. Supreme Court will be hearing three major cases that deal with federalism this term, cases that are expected to draw bright lines on where state and federal powers begin and end. Below are brief descriptions of the three cases and an interview with NCSL’s Senior Federal Affairs Counsel Susan Frederick, who explains what the court will be deciding.

Affordable Care Act
Of particular interest for states is whether the federal government can force states to expand their share of Medicaid costs and administration with the risk of losing that money if they refuse. Twenty-six states, led by Florida, brought the case. Oral arguments are expected in late February or early March, with a ruling sometime in June.

Immigration: Arizona’s S.B. 1070 Law
With partisan gridlock in Washington, Arizona, like many states, dealt with the issue of immigration on its own. In petitioning the court to hear the case, Arizona asserts, “It is the gateway for nearly half of the nation’s illegal border crossings. … Arizona has repeatedly asked the federal government for more vigorous enforcement of the federal immigration laws, but to no avail.” The federal government, on the other hand, asserts Arizona’s law is taking on authority it does not have, authority that rests instead with the federal government. A ruling on this case is expected in June.

Texas Redistricting
An expedited hearing will take place to decide the fate of Texas’ redistricting map, which had been called into question by a lower federal court for undermining the voting rights of Latinos and African Americans. At issue for the court is whether to defer to the state legislature in drawing congressional districts. Oral arguments will begin on Jan. 9, and an opinion is expected early this spring.

 
Susan Frederick has worked in NCSL’s Washington, DC State-Federal Relations office for the past 11 years and holds a J.D. from American University.

Arizona Redistricting Saga

In a special session earlier this month, the Arizona Senate impeached the nonpartisan chair of the redistricting committee on the recommendation of Gov. Jan Brewer. Last week, the state Supreme Court overruled the dismissal of the chair saying that the action "does not demonstrate substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."

The Republican governor and senators, who maintain that the chair hid her Democratic proclivities in order to get appointed and then voted to draw a plan that favored Democrats, now have to decide what to do. Some members talk about re-stating the reasons for the dismissal that will meet the Court's standards for impeachment. Still others talk about reforming the reform, i.e., placing a measure on the ballot to repeal the independent redistricting commission and going back to having the Legislature draw the lines.

Read all about it in the East Valley Tribune.

Declining Use of Multi-Member Districts

by Karl Kurtz

Stateline's Josh Goodman has written a first-rate article on "The Disappearance of Multi-Member Districts." Focusing on Vermont's unusual six-member Senate district in Chittenden County (Burlington) and New Hampshire's large number of multi-member districts (MMDs), he does a nice job of outlining the reasons for creating MMDs (the representation of entire communities in the legislature) and why they have declined in number over time (court decisions finding that they cause racial discrimination).

I liked his paragraph about the need to consider the philosophy of representation in thinking about proposals to eliminate MMDs:

In Vermont, and in West Virginia as well, these proposals have prompted something rare: a debate about representation itself. Is it better that legislators have to appeal to a broad, diverse group of people, or should they represent a narrow, cohesive constituency? Are citizens better served by having a single representative who’s close to them or several different ones to whom they can voice concerns? While conventional redistricting politics is in play in these debates -- critics say, for example, that the multi-member Chittenden Senate seat has benefited Democrats -- the more serious philosophical questions are at least part of the conversation.

The article quotes my colleague Tim Storey about when the decline of MMDs began. His off-the-top-of-his-head statement that the steepest decline was in the 1980s is right on the mark, but it subsequently inspired the two of us to see if we could come up with the actual data on the number of chambers and states using MMDs. Here's what we found:

 

Does anybody have data from the 1960s?

The states that currently have MMDs are Vermont and West Virginia in both the house and the senate, Nevada in the Senate only, and Arizona, Idaho, Maryland, New Hampshire, New Jersey, North Dakota, South Dakota, and Washington in their houses of representatives only. Among the state houses that use MMDs, only Maryland, New Hampshire and West Virginia use it in some districts and not others with varying numbers of represenatives. In the others all representatives run from two-member districts, usually nested inside of state senate districts. (NCSL, Redistricting Law 2010, p. 137)

Peverill Squire and Gary Moncrief in State Legislatures Today: Politics Under the Domes (p. 27) summarize differences that political scientists have found in behavior between legislators in multi-member districts compared to those who represent single-member districts. Legislators in MMDs are more likely to:

• Regard themselves as "trustees" acting on the basis of what they think is best for their state and district, not necessarily the expressed views of their constituents
• Spend more time on constituent service
• Obtain more government funding for their districts.

Read below the jump for a 7/14/2011 update with more historical data on the number of chambers with MMDs.

Supreme Court Upholds Nevada Conflict of Interest Law

The U.S. Supreme Court yesterday unanimously overturned a Nevada Supreme Court decision by ruling that a legislator's vote is not free speech protected by the First Amendment and therefore can be regulated by conflict of interest laws.

The case involved a Sparks, Nevada city council member, Michael Carrigan, who did not recuse himself on a casino proposal on which his campaign manager was a consultant. Carrigan argued successfully before the Nevada Court that his vote was free speech and could not be regulated by conflict of interest laws. The issue was broad enough in its implications for legislatures at all levels that 14 states joined Nevada in the appeal to the Supreme Court.

According to the Washington Post:

The court’s unanimous decision overturned a Nevada Supreme Court decision that said public officials’ votes were a form of constitutionally protected self-expression. In an opinion by Justice Antonin Scalia, the court said laws requiring legislators to recuse themselves from voting on issues in which they have an interest “have been commonplace for over 200 years.”

In announcing the decision, Scalia said that when a public official votes, he is not acting as an individual but as a “political representative engaged in the legislative process.’’

“Acting in that capacity, his vote is not his own speech but a mechanical function of government,” Scalia said.

Justice Alito filed a concurring opinion but objected to Justice Scalia's characterization of a legislator's act of voting:

Justice Samuel A. Alito Jr. did not fully join Scalia’s opinion that voting was only a “symbolic act” that was a function of a legislator’s office, rather than an expression of personal views.

States Continue to Grapple with Immigration

By Ann Morse and Meagan Dorsch

For several years, state legislators have adopted a variety of approaches to fill gaps in federal responsibility for immigration policy and delays in immigration reforms.

According to a new immigration report from the National Conference of State Legislatures (NCSL), the 50 states and Puerto Rico have introduced a record 1,538 bills and resolutions relating to immigrants and refugees in the first quarter of 2011. This number surpasses the first quarter of 2010 by 358 bills.

In this edition of The Buzz at State Legislatures, we talk with several state legislators regarding immigration legislation. In April, 2010, Arizona made national news with its enactment of SB1070, which added new state penalties related to immigration enforcement.

Representative John Kavanagh of Arizona explained to The Buzz that the state was frustrated with federal inaction and the increasing crime, drug smuggling and human smuggling. Download ImmigrationCavanaugh *

Utah is trying a compromise on immigration that could end up being a model for other policymakers, or yet another law tangled up in court. Utah Senator Curtis Bramble spoke with The Buzz at State Legislatures magazine and told us why Utah is taking an approach that addresses both enforcement and the need for workers. Download ImmigrationBramble *

Legislative Scholar in the Middle of New Jersey Redistricting Fight

by Karl Kurtz

Alan Rosenthal, a pre-eminent scholar on American state legislatures, finds himself in the middle of the kinds of political conflicts that he has written eloquently about throughout his career as a political scientist at Rutgers University. He has been appointed by the chief justice of the New Jersey Supreme Court to serve as the 11th, tie-breaking member of the State Legislative Apportionment Commission. The other 10 members consist of a power line-up of five appointees each by the Democratic and Republican state party chairs, including the speaker of the Assembly, a majority leader, a state party chair who also serves in the Legislature, a confidante of the governor's and several current and former legislators.

New Jersey is one of four states that will hold state legislative elections later this year, so they are under greater pressure than most states to get redistricting done quickly. Under the New Jersey Constitution, the 10-member commission had one month from the release of Census data for the state (in early February) to reach agreement on a plan for state legislative districts. The failure of the commission members to accomplish this goal triggered the appointment of Rosenthal by the chief justice on March 3. The judge had consulted about this appointment with both parties, which agreed on Rosenthal as a suitable 11th member. Rosenthal had served in  similar roles in 1991 and 2001 for the state's congressional (not state legislative) redistricting process. The 11-member commission now has until April 4 to come up with a plan. If they fail, New Jersey's districts will be drawn by the courts.

Rosenthal, the intellectual guru of NCSL's Trust for Representative Democracy, is a frequent speaker before state legislative audiences, and his books have been widely read in the legislative community. His mantra, shared by the Trust, is "Representative democracy works, not perfectly but better than any conceivable alternative form of government."

So I wasn't surprised when he said in a phone conversation today:

Maybe I should wait until the end of this process before I say this, but I think New Jersey's redistricting process is working. Both sides agree on the standards that we need to meet--and we will meet them. They disagree primarily on issues of minority representation. And each party is rightfully seeking some advantage in the drawing of districts. My objective is to find one map that everyone will agree on. I think there's a good chance that we will reach that goal--but I wouldn't advise anyone to bet on it.

Rosenthal, 78, added with a laugh, "It's definitely a game for grown-ups. Only trouble is I'm not sure I've grown up yet."

Last week the Star-Ledger ran an engaging story about Rosenthal that reveals some of his personal background and history and elaborates on his philosophy about the political process of redistricting.

Photo credit: Jennifer Hulshizer for the Star-Ledger