The following summaries were shared by the State and Local Legal Center (SLLC), which files amicus curiae with the U.S. Supreme Court in support of states and local governments. The center also conducts moot courts for attorneys arguing before the Supreme Court, and it is a resource to states and local governments on the Supreme Court. Since 1983, the SLLC has filed about 400 amicus briefs.
Supreme Court Midterm Preview for Local Governments
The Supreme Courtâs docket for the 2021-22 term includes a number of important cases for local governments, including First Amendment cases and a case involving whether emotional distress damages are available under a number of federal antidiscrimination statutes. Three of the more interesting cases for local governments are summarized here. To learn about others, access this report.
Shurtleff v. City of Boston
The issue the Supreme Court will decide in Shurtleff v. City of Boston is whether flying a flag on a flagpole owed by a government entity is government speech. If it is, Boston may refuse to fly a Christian flag.
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Boston owns and manages three flagpoles in an area in front of City Hall. Boston flies the United States and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on another flagpole, and its own flag on a third flagpole. Third parties may request to fly their flag instead of the cityâs flag in connection with an event taking place within the immediate area of the flagpoles.
Camp Constitution asked the city to fly its Christian flag while it held an event near the flagpoles. The city refused its request to avoid government establishment of religion.
The U.S. Court of Appeals for the First Circuit held that flying a third-party flag on a city hall flagpole is government speech, meaning the city did not have to fly the Christian flag.
According to the First Circuit, in two previous cases, the Supreme Court has developed a three- part test for determining when speech is government speech. Specifically, the Supreme Court looks at the history of governmental use, whether the message conveyed would be ascribed to the government, and whether the government âeffectively controlledâ the message because it exercised âfinal approval authority over their selection.â
Regarding the history of governments using flags, the First Circuit stated âthat a government flies a flag as a âsymbolic actâ and signal of a greater message to the public is indisputable.â
The First Circuit also concluded that an observer would likely attribute the message of a third- party flag on the cityâs third flagpole to the city.
Finally, the First Circuit had no difficulty concluding the city controlled the flags, writing, âInterested persons and organizations must apply to the City for a permit before they can raise a flag on this flagpole.â
Kennedy v. Bremerton School District
In Kennedy v. Bremerton School District, the Supreme Court will decide whether the First Amendment protects a high school football coach who, joined by students, prayed after football games.
According to Joseph Kennedy, his religious beliefs required him to pray at the end of each game. Students eventually joined him as he kneeled and prayed for about 30 seconds at the 50-yard line.
When the school district found out, the superintendent directed Kennedy not to pray with students. After widely publicizing his plan, Kennedy announced he would pray after a particular game even if students joined him. He was ultimately put on administrative leave and didnât apply to coach the next fall.
The Ninth Circuit held that Kennedy had no First Amendment free speech right to pray because he was speaking as a âgovernment employeeâ rather than as a âprivate citizen.â And even if he was speaking as a private citizen, the Ninth Circuit held the district could prevent him from praying because of Establishment Clause concerns.
The Ninth Circuit concluded Kennedy was speaking as a public employee when he prayed because he âwas one of those especially respected persons chosen to teach on the field, in the locker room, and at the stadium. He was clothed with the mantle of one who imparts knowledge and wisdom. Like others in this position, expression was Kennedyâs stock in trade. Thus, his expression on the fieldâa location that he only had access to because of his employmentâduring a time when he was generally tasked with communicating with students, was speech as a government employee.â
The Ninth Circuit also held that even if Kennedyâs speech was private, avoiding violating the Establishment Clause was an âadequate justification for treating Kennedy differently from other members of the general public.â Per the Ninth Circuit, an objective observer would know âKennedy actively sought support from the community in a manner that encouraged individuals to rush the field to join him and resulted in a conspicuous prayer circle that included students. ⌠Viewing this scene, an objective observer could reach no other conclusion than [the school district] endorsed Kennedyâs religious activity by not stopping the practice.â
Vega v. Tekoh
The question in Vega v. Tekoh is whether a police officer can be sued for money damages for failing to provide a Miranda warning.
Terrance Tekoh was tried for unlawful sexual penetration. At trial, he introduced evidence that his confession was coerced. A jury found him not guilty.
Tekoh then sued the officer who questioned him, Deputy Carlos Vega, under 42 U.S.C. Section 1983, claiming Vega violated his Fifth Amendment right against self-incrimination by not advising him of his Miranda rights.
The Ninth Circuit held Tekoh could bring a Section 1983 case. According to the Ninth Circuit, following Miranda v Arizona (1966), there was much debate over whether Miranda warnings were âconstitutionally required.â
In Dickerson v. United States (2000), the Supreme Court held that Congress could not overrule Miranda via a federal statute that provided confessions were admissible as long as they were voluntarily made, regardless of whether the Miranda warning had been provided. Miranda, the Supreme Court reasoned, was âa constitutional decision.â According to the Ninth Circuit, the Supreme Court has subsequently âmuddiedâ the waters since Dickerson. But since Dickerson, less than five justices have said money damages arenât available for Miranda violations.
Conclusion
Interestingly, all three of these cases present issues which could arise at any local government on any day. Local governments engage in government speech constantly. Local governments, like all employers, want to stop employees from engaging in a variety of activities while at work. And every time a police officer interacts with someone, he or she must decide whether to recite the Miranda warning.
Midterm Preview of Supreme Court Cases for State Governments
This term, the Supreme Court agreed to hear several cases important to state governments, including two that relate directly to public sector workforce issues.
Torres v. Texas Department of Public Safety
The question the U.S. Supreme Court will decide in Torres v. Texas Department of Public Safety is whether a state may be sued in state court for allegedly violating the Uniformed Services Employment and Reemployment Act (USERRA). Texas argued it was immune from such a lawsuit, and the Texas Court of Appeals agreed.
Leroy Torres was employed by the Texas Department of Public Safety (DPS). After he finished a deployment in Iraq, which left him with a lung condition, he tried to get a different position with DPS. DPS only offered him his old job on a temporary basis. He sued DPS in state court, alleging it violated USERRA by failing to offer him a job that would accommodate his service-related disability.
Per the doctrine of sovereign immunity, private parties canât sue states in state court without their consent unless Congress has validly waived sovereign immunity. Congress must do so unequivocally and, relevant to this case, âpursuant to a constitutional provision granting Congress the power to abrogate.â
The Texas Court of Appeals held that Torres could not sue DPS in state court because Congress canât validly abrogate a stateâs sovereign immunity under its Article I war powers. USERRA was âarguablyâ enacted pursuant to such authority.
In Alden v. Maine (1999), the Supreme Court held that â[t]he powers delegated to Congress under Article I of the U.S. Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.â In that case, the Supreme Court was considering whether Congress could validly abrogate Maineâs sovereign immunity in the federal Fair Labor Standards Act (FLSA). The Supreme Court concluded Congress could not.
After reviewing the âhistory, practice, precedent, and structure of the Constitution,â the Supreme Court concluded that the statesâ âimmunity from private suit in their own courtsâ is âbeyond the congressional power to abrogate by Article I legislation.â
Before the Texas Court of Appeals, Torres argued that Aldenâs holding only applies to the âspecific legislation considered in that case (the FLSA) and the specific Article I enumerated power under which that legislation was enacted (the interstate commerce clause). ⌠Torres contends that USERRA was enacted pursuant to Congressâs War Powers, and that Congress could validly abrogate state immunity in its exercise of those powers because there is âcompelling evidenceâ that the States âwere required to surrenderâ War Powers to Congress âpursuant to the constitutional design.ââ
The Texas Court of Appeals refused to read Alden narrowly.
United States v. Washington
In United States v. Washington, the Supreme Court will decide whether Washington State may adopt a workersâ compensation statute which applies exclusively to federal contract workers.
Washingtonâs statute applies to federal contractors working at Hanford, a decommissioned federal nuclear production site covering over 500 square miles in the state. It is easier for workers covered by the Hanford program to demonstrate they are entitled to benefits than it is for those covered by Washingtonâs regular workersâ compensation program. The United States argues that this violates the doctrine of intergovernmental immunity. Per this doctrine, which derives from the Constitutionâs Supremacy Clause, state laws are invalid if they regulate the United States directly or discriminate against the federal government.
The Ninth Circuit held that the Washington statute doesnât violate the doctrine of intergovernmental immunity because it falls within 40 U.S.C. 3172(a)âs waiver of governmental immunity. Section 3172 permits the state authority charged with enforcing workersâ compensation laws to apply those laws to federal land and facilities within the state âin the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.â
Before the Ninth Circuit, the United States argued that the phase âin the same way and to the same extentâ is a âvery limited waiverâ of immunity. According to the United States, this text and the Supreme Courtâs opinion in Goodyear Atomic Corp. v. Miller (1988), âstrongly suggestâ that Section 3172 authorizes only the âextension of generally applicable lawsâ rather than âdiscreteâ workersâ compensation state laws that âsingle outâ the federal government and its contractors.
The Ninth Circuit disagreed, opining: âThe plain text of § 3172 does not purport to limit the workersâ compensation laws for which it waives intergovernmental immunity to only those that are âgenerally applicable.ââ
Conclusion
This term, the U.S. Supreme Court has agreed to decide, and has decided, numerous cases involving states and local governments, ranging from blockbusters to (more) bread-and-butter type cases. The Supreme Court will issue opinions in all of the cases above by the end of June 2022.
01 April 2022
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HR News Article