Unless you avoided the news and any conversation about the news during the last week of June, you know how the two biggest U.S. Supreme Court cases of the court’s most recent term turned out.
In the Affordable Care Act case, the court held 5–4 that the individual mandate is within Congress’s constitutional power to tax. And while seven justices may have concluded that the Medicaid expansion is coercive, only five justices agreed that the remedy was to bar the federal government from withdrawing all Medicaid funding from states that do not participate.
In the Arizona immigration case, the high court held 8–0 that Arizona’s immigration law requiring police to attempt to determine a person’s immigration status — if he or she is stopped for a legitimate reason and there is reasonable suspicion he or she is in the United States unlawfully — isn’t clearly preempted by federal law. But a divided court held that three other provisions of Arizona’s immigration law are preempted.
Yet no matter how closely you followed the news since the court began its October 2011, term you may have missed coverage of a number of less prominent Supreme Court cases affecting counties. This is your chance to catch up.
The State and Local Legal Center (SLLC) filed amicus curiae briefs before the Supreme Court in the first two cases summarized below that are of interest to state and local governments. NACo is a member of the SLLC as are the other “Big Seven” organizations: the U.S. Conference of Mayors, the National League of Cities, the International City/County Management Association, the National Governors Association, the National Conference of State Legislatures, and the Council of State Governments.
Filarsky v. Delia
The U.S. Supreme Court held unanimously that an individual temporarily hired by the government to do its work (in this case a private lawyer) may be immune from a lawsuit for violating someone’s rights.
According to the court, a number of policy reasons support applying qualified immunity to private individuals who work part-time for the government. Some of these reasons include avoiding “unwarranted timidity” by those serving the government even in a part-time capacity, the fact that the “most talented candidates” may decline part-time public assignments if they are ineligible for qualified immunity, the “distractions that accompany even routine lawsuits,” and the difficulty of determining who is working for the government full-time and permanently.
This case was a big win for counties, as outside attorneys and other government contractors now may receive qualified immunity just like their full-time counterparts. As the SLLC wrote in its amicus brief in this case, counties (particularly smaller ones) frequently hire outside counsel. Outside attorneys likely would have raised their rates or even refused to represent counties altogether had the court held they could be sued for the legal advice they give to counties on unclear constitutional issues.
Armour v. Indianapolis
The Supreme Court held 6–3 that the city of Indianapolis didn’t violate the U.S. Constitution’s Equal Protection Clause when it forgave the assessments of lot owners who paid for sewer improvements in multi-year installments but didn’t issue refunds to lot owners who paid for the same improvements in a lump sum.
The court concluded Indianapolis had a rational basis — administrative considerations — for distinguishing between lot owners who had paid for their share of the sewer improvements in full and those who had not. These administrative considerations included maintaining a system that would collect debt for up to 30 years for 20-plus construction projects, with monthly payments as low as $25 per month. And adding refunds to debt forgiveness would only mean further administrative costs — namely processing refunds.
Counties will benefit from the court’s ruling in this case allowing them to tax imperfectly because of administrative reasons without violating the U.S. Constitution.
The court cited the SLLC’s amicus brief, which argued administrative considerations should pass rational-basis review, because if Indianapolis failed to forgive installment payers’ debt it would have to “keep files on old, small installment-plan debts, and (a city official said) possibly spend hundreds of thousands of dollars keeping computerized debt-tracking systems current.”
United States v. Jones
The Supreme Court unanimously held that attaching a global positioning system (GPS) tracking device to a vehicle and then using it to monitor a vehicle’s movements constitutes a search under the 4th Amendment.
Justice Antonin Scalia, writing for the majority, reasoned that “physically occup[ying] private property for the purpose of obtaining information” would have been a search “within the meaning of the 4th Amendment when it was adopted.” Justice Sonia Sotomayor wrote a separate opinion but also joined the majority. She agreed with Scalia that “[w]hen the government physically invades personal property to gather information a search occurs.” But she criticized Scalia’s trespass test as providing “little guidance” where surveillance occurs without a physical intrusion. Justice Samuel Alito, writing for three other justices, rejected the trespass test and opined that “long term GPS monitoring in investigations of most offenses impinges on expectations of privacy” and is therefore a search. Sotomayor agreed with Alito’s holding too.
County police officers may want to use GPS to track a variety of people because it is cheap, easy to use and provides a wealth of detailed information about someone’s whereabouts.
Had the court held the use of GPS isn’t a search, county police officers could have used GPS routinely without a warrant, probable cause or reasonable suspicion. While the court held that installing and using GPS is a search, it did not decide whether a warrant is required.
Florence v. Board of Chosen Freeholders of the County of Burlington
The court held 5–4 that jail detainees “who will be admitted to the general population may be required to undergo a close visual inspection while undressed.”
It concluded that strip-searching detainees before they enter the general jail population does not violate the 4th and 15th Amendments. The court rejected as “unworkable” the argument that detainees not arrested for serious crimes or weapons or drug offenses should be exempt from strip searches unless officers have a particular reason to suspect they are hiding contraband.
First, according to the court, people detained for minor offenses may be “devious and dangerous criminals,” may have the same incentives as more serious criminals to sneak in contraband and may be coerced to sneak in contraband. Second, it may be difficult before the intake search to classify inmates based on current and prior offense because of incomplete or inaccurate records. Even if records were complete, officers would have difficulty quickly determining whether any underlying offenses were serious enough to authorize a strip search.
The court allowed the strip-search in this case where the detainee was entering the general jail population, recognizing “the difficulties of operating a detention center.” However, the ruling in this case is narrow. In concurring opinions, Chief Justice John Roberts and Alito suggest routinely strip searching and admitting minor offenders to the general jail population could violate the constitution.
Conclusion
The Supreme Court’s October 2012 term promises to be an interesting one for counties. So far, the court has agreed to hear two cases directly involving counties. The question in Decker v. Northwestern Environmental Defense Center is whether counties must get permits for storm water runoff on logging roads.
The question in Los Angeles County Flood Control District v. Natural Resources Defense Council is whether municipal separate storm sewers (MS4) are responsible for pollution transferred into a single body of water. Stay tuned.