The Thicket at State Legislatures

Two Supreme Court Wins for State and Local Government

by Lisa Soronen

June 4^th 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.

Can Children Conceived After A Parent’s Death Collect Social Security? States May Decide

By Lisa Soronen

As summer approaches, U.S. Supreme Court decisions trickle out. One of the latest cases concerned the rights of children to inherit Social Security benefits after the death of a parent. The decision could spur statehouses across the country to respond.

In Astrue v. Capato, the court unanimously held that children conceived after their parent’s death may only receive Social Security survivor benefits if they qualify to inherit from their deceased parent under state law.

Karen Capato’s twins were born 18 months after her husband died of cancer with the help of in vitro fertilization using her husband’s frozen sperm.

Capato argued the Social Security Act’s initial definition of “child,” “child of an [insured] individual,” applies to her children. She said a later section of the Social Security Act entitled “determination of family status,” which allows biological children to receive benefits only if they qualify for inheritance from their deceased parent under state law, does not apply to “the biological child of a married couple” because such a child’s family status does not need to be determined.

The court rejected this argument, noting that Capato’s children might not be “the biological child[ren] of a married couple” because in Florida a marriage ends with a death of a spouse. The court also noted the aim of the Social Security Act is to provide benefits to those dependent on a wage earner’s support. If a child is eligible to inherit from a parent under state law, he or she is likely dependent on that parent.

The court pointed out that some states--California, Colorado, Iowa, Louisiana and North Dakota--grant inheritance rights to children conceived posthumously while a number of states-- New York, Georgia, Idaho, Minnesota, South Carolina, and South Dakota—along with Florida, do not.  Proposed state legislation responding to this case is possible.

Lisa Soronen is the executive director of the State & Local Legal Center.

State Hard Pressed to Address Drugged Driving

by Alex Fitzsimmons

Everyone knows the dangers of drunk driving and every state in the country sets blood alcohol level limits. But state lawmakers have recently turned their attention to another deadly behavior:  drugged driving.

Colorado became the latest state to debate drugged driving, as the House voted last week on whether to set a limit of 5 nanograms of THC (the psychoactive ingredient in marijuana) per millimeter of blood. The bill fell one vote short of advancing in the Senate, failing on a 17-17 tie.

More than 30 million people drove drunk and more than 10 million drove drugged in 2009, according to government data. While there is a nationwide standard of .08 g/ml blood alcohol concentration, states like Colorado are finding that regulating drugged driving is a much trickier endeavor.

Determining the point at which a driver is sufficiently impaired so as to pose a risk to society is no easy task not only for states, but also for the scientific community. States have taken a variety of approaches to address impairment levels. More than 30 bills related to drugged driving have been introduced in state legislatures this year, according to NCSL’s Drugged Driving LegisBrief. At NCSL’s 2011 Legislative Summit, state lawmakers explored the challenges of crafting drugged driving legislation.

Seventeen states have passed “per se” laws that make it illegal for drivers to have any prohibited drug in their systems while driving. In these states, the mere presence of drugs in the body is illegal. But not all of these blanket bans are created equal:  Minnesota, for example, exempts marijuana.

Other states address impairment levels with laws that set a blood content threshold. Ohio and Nevada established a threshold of 2 nanograms of illegal substances, while Pennsylvania’s administrative rule sets the level at 5 nanograms.

At the federal level, Congress is considering legislation to fund research on new driving technologies and training for police officers to identify drugged drivers.

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.