News
Appellate Practice
May 30, 2001
U.S. Supreme Court Highlights
Among actions announced Tuesday by the justices were:
Among actions announced Tuesday by the justices were:
OPINIONS
PRISONER SUITS: The court ruled unanimously that prisoners seeking only money damages for alleged violations of their rights by prison officials must exhaust any prison administrative processes that could provide some type of relief, even if that process does not provide for monetary relief. The decision interpreted a provision of the Prison Litigation Reform Act of 1995, which was passed by Congress to curb suits by inmates. The ruling, affirming the Philadelphia-based 3rd U.S. Circuit of Appeals, means that an inmate at a Pennsylvania state prison who claims he was assaulted by guards four times in 1996-97 must file his complaint with the prison's grievance system before seeking damages in a civil rights suit under 42 U.S.C. 1983. Booth v. Churner, 2001 Daily Journal DJDAR 5257.
Writing for the court, Justice David H. Souter said that while the language in the prison act is unclear, the "statutory history" confirms that "Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible."
In the 1995 act, Congress "eliminated both the discretion to dispense with the administrative exhaustion and the condition that the remedy be 'plain, speedy and effective' before exhaustion could be required," Souter said. In doing so, Congress apparently meant to overturn the 1992 decision in McCarthy v. Madigan, 503 U.S. 140, which held that exhaustion was not required before filing civil rights damages claims.
LABOR LAW: The justices ruled unanimously that an employer or labor union challenging the status of employees as supervisors who are exempt from the National Labor Relations Act bears the burden of proving that status. The court also ruled, 5-4, that the National Labor Relations Board's test for determining supervisory status is "inconsistent with the NLRA," because it added the factor of "independent judgment." The decision upholds the Cincinnati-based 6th Circuit's decision that a Kentucky labor union may not represent six registered nurses at a 110-employee care facility for the mentally retarded because the nurses have some supervisory authority. National Labor Relations Board v. Kentucky River Community Care Inc., 2001 DJDAR 5231.
Writing for the court, Justice Antonin Scalia said that although the National Labor Relations Act does not allocate the burden of proving supervisory status, the act "has consistently placed the burden on the party claiming that the employee is a supervisor." That rule is "both reasonable and consistent with the Act," and so the court will defer to the board's judgment, he added in the part of the decision favoring unions.
But the majority, dealing a blow to unions, said the National Labor Relations Act erred in creating a test that employees are not supervisors when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." That interpretation of the labor act, the court said, "introduces a categorical exclusion into statutory text that does not suggest its existence."
Dissenting from the second part of the decision were Justices John Paul Stevens, Souter, Ruth Bader Ginsburg and Stephen G. Breyer. "[T]here is good reason to resolve ambiguities consistently with the Board's interpretation," Stevens wrote. "At the same time that Congress acted to exclude supervisors from the NLRA's protection, it explicitly extended those same protections to professionals, who, by definition, engage in work that involves 'the consistent exercise of discretion and judgment in performance'."
INDIAN LAW: The justices ruled unanimously that Native American tribes may not impose an occupancy tax on non-Native Americans at a hotel that is on non-Native American fee land within the reservation. The decision, reversing the Denver-based 10th Circuit, blocks the attempt by the Navajo Nation to imposes an 8 percent occupancy tax on a hotel that was built by a non-Native American in Cameron, Ariz., on land that is within the boundaries of the Navajo Reservation but not part of it. The hotel caters to tourists visiting the Grand Canyon National Park. Atkinson Trading Co. Inc. v. Shirley, 2001 DJDAR 5253.
Writing for the court, Chief Justice William H. Rehnquist said such a tax does not meet either of the exceptions set out in Montana v. United States, 450 U.S. 544 (1981), which held that "Indian tribes lack civil authority over the conduct of non-members on non-Indian fee land within a reservation." The tax neither results from arranged "commercial dealings" between nonmembers and the tribe, nor from conduct that has some direct effect on the "political integrity, the economic security, or the health and welfare of the tribe," he added.
APPELLATE PROCEDURE: The court ruled unanimously that when a party files a timely notice of appeal in U.S. district court, the party's failure to sign that notice does not require the court of appeals to dismiss the case. The decision, reversing the 6th Circuit, allows an Ohio prison inmate to pursue his pro se civil rights claim under 42 U.S.C. 1983 that he was injured by his exposure to second-hand cigarette smoke. The circuit had dismissed the suit on its own motion because the inmate had failed to sign the notice of appeal and instead typed his name. The inmate signed all the papers he filed in the appeals court, and he filed a signed amended notice of appeal after the circuit dismissed his appeal. Becker v. Montgomery, 2001 DJDAR 5260.
Writing for the court, Ginsburg said that while Federal Rule of Civil Procedure Rule 11(a) requires that all papers filed in district court be signed, "the very same rule ... instructs that any signature omission may be 'corrected promptly after being called to the attention of the attorney or party.'"
The inmate provided "just what the rules direct," Ginsburg added, and thereby "secured his right to a decision on the merits of his appeal."
BOUNDARY BATTLE: The justices ruled, 8-0, that the litigation that led to a 1977 consent decree in a boundary dispute between New Hampshire and Maine bars New Hampshire from bringing a new boundary claim over ownership of land in Portsmouth Harbor. New Hampshire had brought the new claim in order to block Maine from levying an income tax on employees at the Portsmouth Naval Yard in the harbor; New Hampshire has no state income tax. New Hampshire v. Maine, 2001 DJDAR 5265.
Writing for the court, Ginsburg said that granting Maine's motion to dismiss was dictated by the doctrine of judicial estoppel, which is aimed at protecting "the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." In this case, New Hampshire's claim about the boundaries of a river running into the harbor was "clearly inconsistent" with its position on the river's boundaries in the 1970s litigation, she added.
Souter, who was involved in the earlier case as the New Hampshire attorney general, recused himself from this case.
PER CURIAM OPINION
SEARCH AND SEIZURE: The court summarily reversed an Arkansas Supreme Court decision that a police officer who stopped a motorist for speeding and for having a tinted windshield arrested the man merely as a "pretext and sham to search" him and his car, in violation of the Fourth Amendment. In his search, the officer found drugs and drug paraphernalia, which were suppressed by the state court. Arkansas v. Sullivan, 2001 DJDAR 5264.
In a unanimous unsigned opinion, issued without briefing or argument, the justices said that the lower court's decision "is flatly contrary to this Court's controlling precedent." In Whren v. United States, 517 U.S. 806 (1996), the justices added, the high court held that the ulterior motives of police officers are irrelevant, as long as there is probable cause for the traffic stop.
The state court's alternative holding, that it may interpret the U.S. Constitution more broadly than the justices in providing Fourth Amendment protection, "is foreclosed by Oregon v. Hass, 420 U.S. 714 (1975)," the justices added. State courts only may provide such broader protection in interpreting their own state constitution.
GRANT
FIRST AMENDMENT: The justices agreed to review a 7th Circuit decision that plaintiffs claiming prior restraint of their First Amendment speech rights are not entitled to a speedy resolution or decision by government authorities or the courts, merely prompt access to such review through a suit. The circuit was acting on a facial challenge to Chicago regulations governing assemblies in public parks brought by a pro-marijuana group, the Hemp Development Board. The group objected to such requirements as obtaining $1 million in liability insurance before getting a rally permit. The circuit also found that the regulations were not a prior restraint because they are content-neutral. Thomas v. Chicago Park District, 00-1249.
Petitioner: Richard L. Wilson of Orlando, Fla., argued that review is required because "this case is about the most precious aspect of the First Amendment, the right of citizens to speak out publicly on issues of political importance." The decision below on what constitutes "prompt judicial review" is "in direct and irreconcilable conflict with decisions of other federal circuits," including the 9th Circuit in Baby Tam & Co. Inc. v. City of Las Vegas, 154 F. 3d 1097 (1998), and with the prior-restraint procedural safeguards in Freedman v. Maryland, 380 U.S. 51 (1965).
Respondent: Steven A. Weiss of Chicago's Schopf & Weiss contended that "the 7th Circuit's application of the facial challenge and the prior restraint/time, place and manner analyses is completely in keeping with this Court's decisions." While there is a circuit conflict on prompt judicial review, the issue should be reviewed "in the area where the conflict exists, licensing of adult oriented businesses."
DENIALS
AFFIRMATIVE ACTION - LAW SCHOOLS: The court let stand a 9th Circuit decision that the University of Washington School of Law did not violate the 14th Amendment rights of white applicants in considering race as a factor in its admission decisions. A circuit panel, in an opinion by Judge Ferdinand F. Fernandez, said that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures," and that the consideration of race for other than remedial purposes is allowed under Regents of the University of California v. Bakke, 438 U.S. 265 (1978). The decision stemmed from a suit by three white students who were denied admission in 1994, 1995 and 1996. The panel said that the issue of prospective relief is moot because Washington voters in 1998 approved an initiative that forbids "preferential treatment" on the basis of race. Smith v. University of Washington School of Law, 00-1341.
Petitioner: Michael E. Rosman of the Center for Individual Rights in Washington, D.C., argued that "there are few, if any legal issues more significant" than "the use of racial preferences in admissions to higher education." Review also is warranted because the decision below conflicts with the 5th Circuit on "whether 'academic freedom' or 'diversity' is a compelling governmental interest sufficient to justify the use of race preferences in admissions."
Amicus: Eric Grant of the Pacific Legal Foundation in Sacramento filed a brief supporting the petition on behalf of three white plaintiffs in a suit challenging San Francisco's diversity staffing plan for the city's airport.
Respondent: Washington Special Assistant Attorney General David J. Burman contended that, in view of the 1998 initiative, the petition "amounts to no more than a request for an advisory opinion." As for the plaintiffs' damages claims under 42 U.S.C. 1983, "petitioners long ago conceded that respondents were entitled to qualified immunity if the Law School followed Justice Powell's opinion in Bakke."
TAXES ON FEDERAL JUDGES: The court let stand an 11th Circuit decision that application of an Alabama county's occupational tax to federal judges does not violate the Constitution's Compensation Clause. The circuit held that although the tax was imposed by the county after the two judges took the bench in Birmingham, it does not result in an unconstitutional diminution of their compensation because the levy had been authorized by state law before they took the bench, and so they knew it could affect their salaries. The circuit was acting on a remand from the Supreme Court to decide the Compensation Clause issue; the circuit earlier had rejected the judges' challenge under the Tax Injunction Act. Acker v. Jefferson County, Ala., 00-455.
Petitioner: Irwin W. Stolz Jr. of Atlanta's Gambrell & Stolz argued that review is required because the Alabama tax unfairly "exempts a veritable host of occupations and taxpayers," while singling out judges.
Respondent: Jeffrey M. Sewell of the Jefferson County attorney's office in Birmingham contended that the issue of the county tax law's exemptions was never raised before any of the lower courts and "should not be heard for the first time by the Supreme Court."
QUALIFIED IMMUNITY: The justices let stand a 5th Circuit decision that in determining whether law enforcement officers are entitled to qualified immunity from a damages suit, courts must determine whether their conduct violated a clearly established constitutional right only under decisions by the circuit with jurisdiction over the case or by the Supreme Court. The decision rejected a civil rights suit under 42 U.S.C. 1983 by a Louisiana woman against local sheriff's deputies who ignored her repeated complaints of abuse and threats by her estranged husband that ended with her being beaten, raped and shot by him in 1996. The circuit said that because neither it nor the Supreme Court has recognized an equal protection claim for discriminatory failure to protect from domestic violence - even though six circuits have - the deputies are entitled to immunity. Shipp v. McMahon, 00-1392.
Petitioner: Henry C. Walker of Walker, Tooke & Lyons in Shreveport, La., argued that review is warranted because while "this Court has never decided the parameters of 'clearly established law' in the qualified immunity context, it has suggested that the analysis is not confined to cases from the forum circuit." Among the circuits that "do not limit themselves to their own precedent in ascertaining clearly established law" is the 9th Circuit, in Tribble v. Gardner, 860 F.2d 321 (1988),
Respondent: James R. Sterritt of Shreveport's Cook, Yancey, King & Galloway contended that the court below "correctly applied Wilson v. Layne, 526 U.S. 603 (1999), which requires agreement by the lower courts on a constitutional question in determining that the relevant law was clearly established." In addition, "Section 1983 is not the insurer of every crime victim," and law enforcement officers should not have to provide damages to abuse victims "simply because a victim makes conclusory allegations of intent to discriminate."
REGULATION OF POLITICAL ADS: The court denied review of a Mississippi Chancery Court decision that U.S. Chamber of Commerce televised ads touting the virtues of four Mississippi Supreme Court justices up for re-election constituted "express advocacy" and could be enjoined under Buckley v. Valeo, 424 U.S. 1 (1976). Last Nov. 3, the Mississippi Supreme Court rejected the chamber's request for a stay of the decision, but Justice Antonin Scalia, the justice for the area including the state, granted a stay pending disposition of the chamber's petition for cert. Chamber of Commerce of the United States of America v. Vollor, 00-1255.
Petitioner: Jan Witold Baran of Washington, D.C.'s Wiley, Rein & Fielding argued that "unless this Court swiftly and authoritatively affirms First Amendment rights, future election-related advertising will be subject to a proliferation of such prior restraints" as the injunction in this case. In addition, "a split has developed among state and federal courts and agencies over the meaning of the First Amendment concept of 'express advocacy' that this Court announced in Buckley."
Respondent: Robert B. McDuff of Jackson, Miss., contended that review would be premature because the state supreme court is considering the case and has not yet ruled. What's more, the case is moot, because the election is over, and "this case stems from an unusual set of events unlikely to be repeated."
PRISONER SUITS: The court ruled unanimously that prisoners seeking only money damages for alleged violations of their rights by prison officials must exhaust any prison administrative processes that could provide some type of relief, even if that process does not provide for monetary relief. The decision interpreted a provision of the Prison Litigation Reform Act of 1995, which was passed by Congress to curb suits by inmates. The ruling, affirming the Philadelphia-based 3rd U.S. Circuit of Appeals, means that an inmate at a Pennsylvania state prison who claims he was assaulted by guards four times in 1996-97 must file his complaint with the prison's grievance system before seeking damages in a civil rights suit under 42 U.S.C. 1983. Booth v. Churner, 2001 Daily Journal DJDAR 5257.
Writing for the court, Justice David H. Souter said that while the language in the prison act is unclear, the "statutory history" confirms that "Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible."
In the 1995 act, Congress "eliminated both the discretion to dispense with the administrative exhaustion and the condition that the remedy be 'plain, speedy and effective' before exhaustion could be required," Souter said. In doing so, Congress apparently meant to overturn the 1992 decision in McCarthy v. Madigan, 503 U.S. 140, which held that exhaustion was not required before filing civil rights damages claims.
LABOR LAW: The justices ruled unanimously that an employer or labor union challenging the status of employees as supervisors who are exempt from the National Labor Relations Act bears the burden of proving that status. The court also ruled, 5-4, that the National Labor Relations Board's test for determining supervisory status is "inconsistent with the NLRA," because it added the factor of "independent judgment." The decision upholds the Cincinnati-based 6th Circuit's decision that a Kentucky labor union may not represent six registered nurses at a 110-employee care facility for the mentally retarded because the nurses have some supervisory authority. National Labor Relations Board v. Kentucky River Community Care Inc., 2001 DJDAR 5231.
Writing for the court, Justice Antonin Scalia said that although the National Labor Relations Act does not allocate the burden of proving supervisory status, the act "has consistently placed the burden on the party claiming that the employee is a supervisor." That rule is "both reasonable and consistent with the Act," and so the court will defer to the board's judgment, he added in the part of the decision favoring unions.
But the majority, dealing a blow to unions, said the National Labor Relations Act erred in creating a test that employees are not supervisors when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." That interpretation of the labor act, the court said, "introduces a categorical exclusion into statutory text that does not suggest its existence."
Dissenting from the second part of the decision were Justices John Paul Stevens, Souter, Ruth Bader Ginsburg and Stephen G. Breyer. "[T]here is good reason to resolve ambiguities consistently with the Board's interpretation," Stevens wrote. "At the same time that Congress acted to exclude supervisors from the NLRA's protection, it explicitly extended those same protections to professionals, who, by definition, engage in work that involves 'the consistent exercise of discretion and judgment in performance'."
INDIAN LAW: The justices ruled unanimously that Native American tribes may not impose an occupancy tax on non-Native Americans at a hotel that is on non-Native American fee land within the reservation. The decision, reversing the Denver-based 10th Circuit, blocks the attempt by the Navajo Nation to imposes an 8 percent occupancy tax on a hotel that was built by a non-Native American in Cameron, Ariz., on land that is within the boundaries of the Navajo Reservation but not part of it. The hotel caters to tourists visiting the Grand Canyon National Park. Atkinson Trading Co. Inc. v. Shirley, 2001 DJDAR 5253.
Writing for the court, Chief Justice William H. Rehnquist said such a tax does not meet either of the exceptions set out in Montana v. United States, 450 U.S. 544 (1981), which held that "Indian tribes lack civil authority over the conduct of non-members on non-Indian fee land within a reservation." The tax neither results from arranged "commercial dealings" between nonmembers and the tribe, nor from conduct that has some direct effect on the "political integrity, the economic security, or the health and welfare of the tribe," he added.
APPELLATE PROCEDURE: The court ruled unanimously that when a party files a timely notice of appeal in U.S. district court, the party's failure to sign that notice does not require the court of appeals to dismiss the case. The decision, reversing the 6th Circuit, allows an Ohio prison inmate to pursue his pro se civil rights claim under 42 U.S.C. 1983 that he was injured by his exposure to second-hand cigarette smoke. The circuit had dismissed the suit on its own motion because the inmate had failed to sign the notice of appeal and instead typed his name. The inmate signed all the papers he filed in the appeals court, and he filed a signed amended notice of appeal after the circuit dismissed his appeal. Becker v. Montgomery, 2001 DJDAR 5260.
Writing for the court, Ginsburg said that while Federal Rule of Civil Procedure Rule 11(a) requires that all papers filed in district court be signed, "the very same rule ... instructs that any signature omission may be 'corrected promptly after being called to the attention of the attorney or party.'"
The inmate provided "just what the rules direct," Ginsburg added, and thereby "secured his right to a decision on the merits of his appeal."
BOUNDARY BATTLE: The justices ruled, 8-0, that the litigation that led to a 1977 consent decree in a boundary dispute between New Hampshire and Maine bars New Hampshire from bringing a new boundary claim over ownership of land in Portsmouth Harbor. New Hampshire had brought the new claim in order to block Maine from levying an income tax on employees at the Portsmouth Naval Yard in the harbor; New Hampshire has no state income tax. New Hampshire v. Maine, 2001 DJDAR 5265.
Writing for the court, Ginsburg said that granting Maine's motion to dismiss was dictated by the doctrine of judicial estoppel, which is aimed at protecting "the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." In this case, New Hampshire's claim about the boundaries of a river running into the harbor was "clearly inconsistent" with its position on the river's boundaries in the 1970s litigation, she added.
Souter, who was involved in the earlier case as the New Hampshire attorney general, recused himself from this case.
SEARCH AND SEIZURE: The court summarily reversed an Arkansas Supreme Court decision that a police officer who stopped a motorist for speeding and for having a tinted windshield arrested the man merely as a "pretext and sham to search" him and his car, in violation of the Fourth Amendment. In his search, the officer found drugs and drug paraphernalia, which were suppressed by the state court. Arkansas v. Sullivan, 2001 DJDAR 5264.
In a unanimous unsigned opinion, issued without briefing or argument, the justices said that the lower court's decision "is flatly contrary to this Court's controlling precedent." In Whren v. United States, 517 U.S. 806 (1996), the justices added, the high court held that the ulterior motives of police officers are irrelevant, as long as there is probable cause for the traffic stop.
The state court's alternative holding, that it may interpret the U.S. Constitution more broadly than the justices in providing Fourth Amendment protection, "is foreclosed by Oregon v. Hass, 420 U.S. 714 (1975)," the justices added. State courts only may provide such broader protection in interpreting their own state constitution.
FIRST AMENDMENT: The justices agreed to review a 7th Circuit decision that plaintiffs claiming prior restraint of their First Amendment speech rights are not entitled to a speedy resolution or decision by government authorities or the courts, merely prompt access to such review through a suit. The circuit was acting on a facial challenge to Chicago regulations governing assemblies in public parks brought by a pro-marijuana group, the Hemp Development Board. The group objected to such requirements as obtaining $1 million in liability insurance before getting a rally permit. The circuit also found that the regulations were not a prior restraint because they are content-neutral. Thomas v. Chicago Park District, 00-1249.
Petitioner: Richard L. Wilson of Orlando, Fla., argued that review is required because "this case is about the most precious aspect of the First Amendment, the right of citizens to speak out publicly on issues of political importance." The decision below on what constitutes "prompt judicial review" is "in direct and irreconcilable conflict with decisions of other federal circuits," including the 9th Circuit in Baby Tam & Co. Inc. v. City of Las Vegas, 154 F. 3d 1097 (1998), and with the prior-restraint procedural safeguards in Freedman v. Maryland, 380 U.S. 51 (1965).
Respondent: Steven A. Weiss of Chicago's Schopf & Weiss contended that "the 7th Circuit's application of the facial challenge and the prior restraint/time, place and manner analyses is completely in keeping with this Court's decisions." While there is a circuit conflict on prompt judicial review, the issue should be reviewed "in the area where the conflict exists, licensing of adult oriented businesses."
AFFIRMATIVE ACTION - LAW SCHOOLS: The court let stand a 9th Circuit decision that the University of Washington School of Law did not violate the 14th Amendment rights of white applicants in considering race as a factor in its admission decisions. A circuit panel, in an opinion by Judge Ferdinand F. Fernandez, said that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures," and that the consideration of race for other than remedial purposes is allowed under Regents of the University of California v. Bakke, 438 U.S. 265 (1978). The decision stemmed from a suit by three white students who were denied admission in 1994, 1995 and 1996. The panel said that the issue of prospective relief is moot because Washington voters in 1998 approved an initiative that forbids "preferential treatment" on the basis of race. Smith v. University of Washington School of Law, 00-1341.
Petitioner: Michael E. Rosman of the Center for Individual Rights in Washington, D.C., argued that "there are few, if any legal issues more significant" than "the use of racial preferences in admissions to higher education." Review also is warranted because the decision below conflicts with the 5th Circuit on "whether 'academic freedom' or 'diversity' is a compelling governmental interest sufficient to justify the use of race preferences in admissions."
Amicus: Eric Grant of the Pacific Legal Foundation in Sacramento filed a brief supporting the petition on behalf of three white plaintiffs in a suit challenging San Francisco's diversity staffing plan for the city's airport.
Respondent: Washington Special Assistant Attorney General David J. Burman contended that, in view of the 1998 initiative, the petition "amounts to no more than a request for an advisory opinion." As for the plaintiffs' damages claims under 42 U.S.C. 1983, "petitioners long ago conceded that respondents were entitled to qualified immunity if the Law School followed Justice Powell's opinion in Bakke."
TAXES ON FEDERAL JUDGES: The court let stand an 11th Circuit decision that application of an Alabama county's occupational tax to federal judges does not violate the Constitution's Compensation Clause. The circuit held that although the tax was imposed by the county after the two judges took the bench in Birmingham, it does not result in an unconstitutional diminution of their compensation because the levy had been authorized by state law before they took the bench, and so they knew it could affect their salaries. The circuit was acting on a remand from the Supreme Court to decide the Compensation Clause issue; the circuit earlier had rejected the judges' challenge under the Tax Injunction Act. Acker v. Jefferson County, Ala., 00-455.
Petitioner: Irwin W. Stolz Jr. of Atlanta's Gambrell & Stolz argued that review is required because the Alabama tax unfairly "exempts a veritable host of occupations and taxpayers," while singling out judges.
Respondent: Jeffrey M. Sewell of the Jefferson County attorney's office in Birmingham contended that the issue of the county tax law's exemptions was never raised before any of the lower courts and "should not be heard for the first time by the Supreme Court."
QUALIFIED IMMUNITY: The justices let stand a 5th Circuit decision that in determining whether law enforcement officers are entitled to qualified immunity from a damages suit, courts must determine whether their conduct violated a clearly established constitutional right only under decisions by the circuit with jurisdiction over the case or by the Supreme Court. The decision rejected a civil rights suit under 42 U.S.C. 1983 by a Louisiana woman against local sheriff's deputies who ignored her repeated complaints of abuse and threats by her estranged husband that ended with her being beaten, raped and shot by him in 1996. The circuit said that because neither it nor the Supreme Court has recognized an equal protection claim for discriminatory failure to protect from domestic violence - even though six circuits have - the deputies are entitled to immunity. Shipp v. McMahon, 00-1392.
Petitioner: Henry C. Walker of Walker, Tooke & Lyons in Shreveport, La., argued that review is warranted because while "this Court has never decided the parameters of 'clearly established law' in the qualified immunity context, it has suggested that the analysis is not confined to cases from the forum circuit." Among the circuits that "do not limit themselves to their own precedent in ascertaining clearly established law" is the 9th Circuit, in Tribble v. Gardner, 860 F.2d 321 (1988),
Respondent: James R. Sterritt of Shreveport's Cook, Yancey, King & Galloway contended that the court below "correctly applied Wilson v. Layne, 526 U.S. 603 (1999), which requires agreement by the lower courts on a constitutional question in determining that the relevant law was clearly established." In addition, "Section 1983 is not the insurer of every crime victim," and law enforcement officers should not have to provide damages to abuse victims "simply because a victim makes conclusory allegations of intent to discriminate."
REGULATION OF POLITICAL ADS: The court denied review of a Mississippi Chancery Court decision that U.S. Chamber of Commerce televised ads touting the virtues of four Mississippi Supreme Court justices up for re-election constituted "express advocacy" and could be enjoined under Buckley v. Valeo, 424 U.S. 1 (1976). Last Nov. 3, the Mississippi Supreme Court rejected the chamber's request for a stay of the decision, but Justice Antonin Scalia, the justice for the area including the state, granted a stay pending disposition of the chamber's petition for cert. Chamber of Commerce of the United States of America v. Vollor, 00-1255.
Petitioner: Jan Witold Baran of Washington, D.C.'s Wiley, Rein & Fielding argued that "unless this Court swiftly and authoritatively affirms First Amendment rights, future election-related advertising will be subject to a proliferation of such prior restraints" as the injunction in this case. In addition, "a split has developed among state and federal courts and agencies over the meaning of the First Amendment concept of 'express advocacy' that this Court announced in Buckley."
Respondent: Robert B. McDuff of Jackson, Miss., contended that review would be premature because the state supreme court is considering the case and has not yet ruled. What's more, the case is moot, because the election is over, and "this case stems from an unusual set of events unlikely to be repeated."
- David F. Pike
#337366
David Pike
Daily Journal Staff Writer
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