 You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Supreme Court 2001-2002, The Termin Review, an FJTN program for judges, staff attorneys and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Welcome to the Federal Judicial Center's sixth annual review of the Supreme Court's October term. We'll analyze the Court's holding in 46 of this term's cases, first civil and then criminal and habeas. We'll take two short breaks, one during the civil cases and another between the civil and criminal cases. This was an unusual year for the Court, as for the rest of the country. In October, the appearance of anthrax closed down the building for a few days, and thus the justices used the ceremonial courtroom in the E. Barrett-Prettingman Federal Courthouse. Five of the cases we'll discuss today were argued there, rather than in the Court's regular workplace. Other workplaces were important this term, generating cases about employment discrimination, EEOC, and the Americans with Disabilities Act. We'll consider them, along with several First Amendment cases, decisions involving schools and school administration, and other aspects of the civil docket. The criminal cases we'll discuss run the gamut, including some far-reaching, sentencing decisions. Your written materials have summaries of all 80 of this term's cases that were decided with a full opinion or a substantive purcurium opinion. The 46 cases that we'll discuss are listed first, in the order we'll discuss them. The materials also include brief biographies of the four law professors who will summarize and comment on the cases. These complete and faxed to us the one-page evaluation form in your written materials. We use your comments as we plan these programs. Let's turn now to holdings under the First Amendment. First Amendment cases this term included the highly publicized Ohio decision involving religious schools, which we'll discuss in a later segment on school cases. Others dealt with sexual speech, door-to-door canvassing, and judicial election campaigns. Here to discuss them are Erwin Chemerinsky of the University of Southern California Law School, and Lori Levinson of Loyola University Law School. And Lori, let's start with the judicial election campaign decision. There's a lot of effort to regulate judicial elections now, but the Supreme Court said this term, one thing the states can't do is tell judicial candidates that they cannot announce their views on disputed legal and political issues. From a 1972 ABA code of conduct, five members of the court led by Justice Scalia said this didn't come close to passing muster under the First Amendment. That's right. What the court did was strike down a Minnesota ethics rule that barred judicial candidates from announcing a position on disputed legal and political issues. And what the majority said is, look, even though we may not endorse judicial elections, if you're going to have them, this type of rule does not pass strict scrutiny. The public has a right to hear these views. The candidates have a right to announce them. In a concurrence, Justice O'Connor said she also didn't like judicial elections, but she didn't like censoring candidates. And if anything, maybe they could have stronger recusal rules for the judges. But in dissent, the data center said, look, there are different types of elections, and there is an important public interest in making sure that you don't have judges who are locked into positions when they take the bench. And Justice Scalia said, but the judges, on the other hand, don't write on a clean slate. That's right. Thanks, Lori. Irwin will get to the door-to-door canvassing decision in a moment, but there are a lot of regulations out there on the books now. I guess the announce clause has gone, but some states have a prohibition against pledging to decide cases in a certain way. And there's about 25 states who have a newer ABA formulation. Candidates can't commit or appear to commit themselves. There's going to be more federal litigation about this. How's it going to play out? I think federal courts can't expect to see challenges to these laws that exist in other states, such as the ones you mentioned, that say that candidates of your office can't make pledges or promise a conduct in office to make statements that appear to commit themselves to particular decisions. Also I think this might open the door to judges bringing challenges to regulations that limit other types of judicial speech. And there may be implications for those who are candidates for federal judicial office as well, as those who are facing Senate confirmation have decided what statements they feel comfortable making to the Senate but disputed legal or political issues. Senator says, the Supreme Court says I can ask you your views on the ADA or something like that. We'll see if it happens. Let's get to the case involving the Watchtower Bible and Track Society, better known as Jehovah's Witnesses. Of course, it generated a lot of First Amendment law. They challenged here the town ordinance in Stratton, Ohio, that said anybody who wanted to go on private property to promote, for our purposes, religion or politics, had to get a permit from the mayor, which were routinely granted. But nevertheless, the court said this is facially invalid. Just as Stevens wrote for the court in an 8 to 1 decision, just as Stevens emphasized that requiring a permit from the mayor violated the First Amendment, the court said that soliciting and canvassing do-it-or-door is protected First Amendment activity. Just as Stevens said to require a permit could discourage spontaneous solicitation. He said people have the right to solicit anonymously, and a permit would be inconsistent with that First Amendment freedom. Now the government said it needed this to protect safety and to safeguard privacy. As the safety, Justice Stevens said, there's no reason to believe that a permit requirement will really discourage crime or decrease crime in the neighborhood. As the privacy, Justice Stevens said, people just post on their doors, no solicitation, no trespassing, and the government can then enforce those desires of the occupants of the home. But they didn't strike down all permit requirements. For example, those under Chicago Park Division where you need a permit and a park are still upheld. Okay, thanks very much, Lori. Let me ask you about another ordinance. This one from Los Angeles, your hometown. This involves sexual speech and an ordinance prohibiting the co-location and one building of two multi-purpose adult stores. The city council reliant on a 1977 planning study. Now at least to get by a summary judgment motion, what kind of government interest does the ordinance have to have behind it? Well, this was enough, and that's what the court held, that they could go back to this old study from 1977 and use it to uphold this new ordinance on multiple uses of one property for adult entertainment. And they said that that meets what continues to be the rent and standard, which is you have to have a content neutral regulation that basically has to serve a substantial government interest in diminishing the secondary effects of what they see as the speech. And in this situation when they were worried about crime, and finally you have to reasonable alternative available for the communications. The bottom line here is that the court made it easier to uphold these types of regulations because they can rely on these type of studies. I think that's right. I think this case has to be taken together with the Supreme Court's decision from two years ago in city of Erie versus Pamps A.M., where the court upheld a local ordinance prohibiting new dancing. It shows that there's at least a plurality of the court that wants to make great deffence to local governments in regulating adult entertainment establishments. There was no majority opinion in this case from Los Angeles. That's right. Nor was there in city of Erie two years ago. Let me ask you to describe briefly this next case involving the Ashcroft versus ACLU in the 1998 the Child Online Protection Act. It's a very fractured majority here. There wasn't a majority. The law applies to commercial websites and it says that if the commercial websites that have material that would appeal to the prurient interest of a minor and be offensive by contemporary community standards, then they have to do age verification. A federal district court declared the law unconstitutional on several grounds. The third circuit affirmed on one ground that the phrase contemporary community standards was unduly vague. The Supreme Court reversed on that ground with Justice Thomas writing the opinion. Justice Thomas said the phrase contemporary community standards is well established, especially in the law of obscenity. The court kept in place the injunction against enforcement law and then remanded the case back to the third circuit for deciding the other constitutional questions. The underlying issue that was discussed in a lot of the concurring opinion is how do you decide what are community standards for a national medium like the internet? There's clearly no agreement on the justice that and that's sure to come back before the Supreme Court. Maybe not next year, but years ahead. And I think that's a real challenge for the district court judges after this decision. If you are going to have a national medium like the internet, how do you even derive what the community standard would be and how do you apply it? Well, we'll see what the court says in these decisions that come back to it. Let me ask you finally about another case involving the Justice Department Defense of the Statue. This was the suit brought by the Free Speech Coalition about the 1996 Child Pornography Prevention Act. Now, this ban's not just obscenity involving children. This abands sexually explicit images of sexually explicit conduct by children. Images of that, which could be produced by young adults or by a computer generated actors, as it were, on virtual pornography. What kind of law did the court establish here at Congress as rewriting the statute even as we speak? Well, the court decided that this was an overbroad law because, in fact, they were worried about getting rid of Romeo and Juliet or the acts in the taxi driver. What they said is that if you can show it's child pornography, you can ban that. For virtual child pornography, it would be too broad under the First Amendment to ban that. And so the challenges for law enforcement right now is how do they attack that? Do they use obscenity statutes or do they change the law? And prosecutors are very concerned that it's almost impossible to tell the difference between child pornography that uses children's production as opposed to child pornography that's computer generated. And I think what you say is right. Some prosecutors might simply try to go after the material under obscenity laws to avoid the need to try to prove that children were used in the production of child pornography. And the other thing I understand that prosecutors are doing are using historical materials to say that these are images that existed before the technology to do virtual imaging so we know that it's really child pornography. We're testing it. Well, thanks very much, Laurie. And thank you, Erwin. Next, we'll take up a group of cases involving employment law. As mentioned in the program opening, this was a big term for labor cases. Let's look at a brief description of eight of them. And then Evan Lee and Susanna Sherry will comment. In Svarkovitz v. Surima, the court dealt with the very basic question of what a plaintiff must plead in order to prevail against a motion to dismiss. The court decided that only three elements were required under rule 8A of the rules of civil procedure, a short statement of jurisdiction, a short and plain statement of the claim showing that the plaintiff is entitled to relief, and a demand for judgment for relief sought. A district court dismissed Svarkovitz's Title VII and age discrimination claims because he did not adequately allege circumstances that support an inference of discrimination and thus had not made out a prima facie case. The appeals court affirmed. The Supreme Court reversed in a short opinion by Justice Thomas. It said the requirement of a prima facie case first set out by the court in its 1973 decision, McDonald Douglas v. Green, was an evidentiary standard and not a pleading standard. Surima's argument that heightened pleading standards would weed out frivolous claims was a matter for the rule making process, not judicial decision. Last term in Circuit City v. Adams, the court ruled that the Federal Arbitration Act covers most employment contracts. This term, the court ruled that even if an employee agreed to arbitrate all employment issues, that did not prevent the EEOC from filing suit on his behalf. The Waffle House restaurant in West Columbia, South Carolina, fired Eric Baker after he had a seizure during work. He filed a discrimination charge with the EEOC, claiming his firing violated the Americans with Disabilities Act. Baker had agreed in writing that any dispute or claim concerning his employment with Waffle House will be settled by binding arbitration. But the court noted that the EEOC was not a party to that agreement and that a contract cannot bind a non-party. Lynchburg College denied Leonard Edelman tenure in June 1997. In a November 1997 letter to the EEOC, he charged gender and other discrimination. The EEOC then sent him a charge of discrimination form to review and verify. He returned it on April 15, 313 days after the June 1997 tenure denial. Title 7 says that complainants like Edelman, who had also instituted state court proceedings, must submit their claims to the EEOC within 300 days from the day of the alleged discrimination. However, EEOC regulations allow a timely filer to verify a charge after the time for filing has expired. The EEOC regarded Edelman's November 1997 letter as a timely charge and issued him a right to sue letter. Writing for six other justices, Justice Souter affirmed the EEOC regulation as the most logical reading of the statute. Title 7 did not require the EEOC to regard the requirement for filing a charge and the requirement for verifying it as the same act. Justices O'Connor and Scalia concurred in the judgment, saying that the EEOC regulation was not the most logical reading of Title 7, but nevertheless was due deference under the Chevron doctrine. The third EEOC case also involved the right to sue letter and the 300 day limit for filing a complaint. Abner Morgan, an Amtrak electrician in San Francisco, complained in 1995, both the EEOC and the state equal employment agency, that he had been the victim of hostile environment racial discrimination since 1991. He received his right to sue letter from the EEOC and filed suit in federal court, charging Title 7 violations. The district court granted Amtrak some re-judgment as to all incidents that occurred more than 300 days prior to Morgan's filing his state and federal agency claims. The court of appeals reversed, saying the continuing violations doctrine applied to hostile work environment claims such as Morgan's. The Supreme Court affirmed in part and reversed in part. Complaints about discrete acts of discrimination, wrote Justice Thomas, had to be filed within the time limits established by Title 7 and the EEOC. But, hostile work environment complaints are different. Provided that an act contributing to the claim occurs within the filing period, he continued, the entire period of the hostile environment may be considered by a court for the purposes of determining liability. Three employment cases dealt with the Americans with Disabilities Act or ADA. Toyota v. Williams dealt with the term disability. Ella Williams developed carpal tunnel syndrome working on the Toyota assembly plant in Kentucky. Her pains ended when the company shifted her to other jobs on the line, but returned when her job was rewritten to require her to hold her arms at shoulder height for several hours a day. Her attendance at work declined. Her doctors told her to do no work of any kind, and soon thereafter, she was fired for poor attendance. She sued Toyota, alleging, among other things, that the company discriminated against her by not accommodating her disability and by terminating her. The ADA defines disability as a physical impairment that substantially limits one or more major life activities. Health and Human Services Department regulations give us examples of major life activities, walking, seeing, hearing, and most relevant here, performing manual tasks. The court unanimously remanded Williams' case for further proceedings based on the strict reading of disability in Justice O'Connor's opinion. Relying in part on dictionary definitions of substantial and major, Justice O'Connor held that to be substantially limited in performing manual tasks, one must have a permanent or long-term impairment that prevents or severely restricts her from doing activities that are of central importance to most people's daily lives. The record showed that Williams' disability limited her ability to garden, play with her children, and drive long distances. But these changes said Justice O'Connor did not amount to such severe restrictions in the activities that are of central importance to most people's daily lives that they establish a manual task disability as a matter of law. Another ADA issue involved the direct threat defense. Chevron twice rejected Mario Echizabel for jobs in its refineries, after doctors concluded that the chemicals would damage or kill him because of a liver ailment. Echizabel sued Chevron under the ADA. The ADA says employers may refuse to accommodate an individual's disability if it would pose a direct threat to the health and safety of others. Although the act says nothing about a threat to the individual himself, the EEOC regulation did, referring to the health and safety of the individual or others in the workplace. The court unanimously upheld the regulation. Harm to others was only an example of a defense, not the only defense available, said Justice Souter. The EEOC acted within its authority in issuing the regulation, and it was a reasonable interpretation of the statute and thus entitled to deference under the 1984 Chevron standard. The third ADA case dealt with conflicts between the acts requirements and union rules. In 1990, Robert Barnett suffered a permanent back injury working as a baggage handler for U.S. Airways. Invoking his seniority rights, he transferred to a less physically demanding mailroom job. Two years later, Barnett learned that two other employees, senior to him, were planning to bid for his job. He asked U.S. Airways to accommodate his disability and make an exception that would allow him to remain in the mailroom. The airline left Barnett in the job for five months, while it considered his request, but ultimately decided not to make an exception and Barnett lost his job. Barnett sued claiming U.S. Airways discriminated against him by failing to reasonably accommodate his disability, which the ADA says may include reassignment to a vacant position. The Supreme Court ruled for the airline. A five justice majority in an opinion by Justice Breyer said that when a requested accommodation conflicts with the rules of a seniority system, the accommodation ordinarily is not reasonable. Hence, such a showing will entitle an employer defendant to some read judgment on the question, unless there is more. The plaintiff remains free, said the court, to present evidence of special circumstances that make reasonable a seniority rule exception in the particular case. A final employment case of this term fell at the intersection of employment and immigration law. Hoffman Plastics fired Jose Castro and others for union organizing activities. The NLRB decided the layoffs violated the National Labor Relations Act, and awarded Castro back pay, despite the administrative law judge's finding that Castro was in the country illegally and he used fake documents to gain employment. The court, however, in a five to four ruling, held that the board's decision was foreclosed by the 1986 Immigration Act. Allowing the board to award back pay to illegal aliens, said Chief Justice Rehnquist, would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in the 1986 Immigration Act. He also noted that Hoffman was subject to the NLRB's order to cease and desist its violations of the NLRA or be subject to contempt proceedings. If the NLRB needs more authority to remedy violations of the NLRA, said the Chief Justice, the matter must be addressed by congressional action, not the courts. Here to discuss these cases are Evan Sen Lee of the University of California, Hastings College of the Law, and Susanna Sherry of Vanderbilt School of Law. And Susanna, we were talking before the program about your sense of two themes running through the cases of this term, the ones we saw and others. Tell us what these two themes are. I think these themes continue a trend that the Supreme Court has been doing for several years, and that is removing procedural barriers that make it easier for plaintiffs to bring employment discrimination suits. But at the same time, the court has been narrowing the substantive protections, especially under the ADA, and made it harder for plaintiffs to win employment discrimination suits. You can see this from a couple of terms ago in Reeves v. Sanderson, which removed a procedural barrier and said there would be no heightened evidentiary standards. And then this term, the Swarkowitz case, which said there can be no heightened pleading standards in employment discrimination cases, made it easier for plaintiffs to bring the cases. I think what this tells lower courts is that they can't deal with the explosion in employment litigation by dismissing the cases early. Well, you know, I think you see that trend again in Edelman, where the court allows the EEOC to come in and cure a technical defect, essentially, through statutory interpretation. And then Waffle House is another example where the EEOC is permitted to litigate despite the existence of an arbitration agreement. Again, a procedural barrier removed. Which one of these cases is going to have the biggest impact on district courts? Well, I think Swarkowitz probably will. Well, I actually think it may be a case that we haven't talked about yet, which is the Morgan decision, which is the case involving the non-hostile work environment. And I think this case is important for a couple of different reasons. One is that prior to this case, I don't think it was at all clear that non-hostile work environment claims outside the statute of limitations couldn't come in. I think this case establishes clearly that they cannot come in. The second important thing about this case, I think, is that plaintiff's lawyers have to be looking at this and saying we're going to recast many, if not all, of these claims as hostile work environment claims. I think that's going to be rather difficult. How do you recast a discrete incident, a firing or a failure to promote as a hostile environment case? Right, right. Well, there is an outside limit. And the outside limit is that the plaintiff is still going to have to prove that the defendant's conduct was severe or pervasive. So there's not complete elasticity in it. I see the point. I still think Swarkowitz is going to be more important because, as you say, not every case can be recast as a hostile environment case. But I think that motions to dismiss our pretty routine in virtually every employment case. We'll watch it. Evan, I'd like you to pick up on the second point that Susanna brought out. And that is the beager to get into the courthouse. But once there, it may be harder for plaintiffs to win. Well, I think that's right. And I think you see it clearly in Toyota versus Williams, where the court chooses an objective view of what constitutes a major life activity. Could have chosen a subjective view, essentially looking at individual plaintiffs and saying, well, what is important in this person's life, but it didn't choose that? I actually think that the most interesting aspect of Williams is the question left unanswered, which is whether working in and of itself constitutes a major life activity. Justice O'Connor indicates the court is not yet ready to decide that. I think it's a fascinating, intellectual, intriguing question that the lower courts are going to have to deal with in the next couple of years. Barnett is actually quite similar in both senses. It closes the door to some plaintiffs, but it leaves a lot of things off. This is the seniority system. This is the question of the seniority system. The case makes it easier for employers to win. It means that they don't have to accommodate requests if the request would disrupt the seniority system. What the court says is that a seniority system would ordinarily, not per se, but ordinarily trump a request for an accommodation, make that request unreasonable. But then the court goes on to say that the plaintiff has an opportunity to demonstrate that this particular request for an accommodation is reasonable despite the seniority system. And the court gives very little guidance on what is and what is not a reasonable accommodation in the face of a seniority system. The court gave two examples. One is where the employer has retained the unilateral right to change the seniority system and has exercised that right frequently enough that the employees don't have much expectation or reliance interest. And the other is where the policy itself is so riddled with exceptions that they can't count on it. And so, but the court said these are only exceptions. These are only examples. And the lower courts are going to have to struggle with when is an accommodation request reasonable if it is a deviation from the seniority system. Well, you know, again, in the etch-a-zobble case, the court effectively narrowed the operation of the ADA by recognizing a broad direct threat defense. Although, again, I will say that I think the most interesting thing about etch-a-zobble is the question left unanswered, which is, is there going to be a good faith direct threat defense for employers? I mean, a situation where the employer's doctor comes in and says, well, look, this guy, because of his disability, is a direct threat to the safety of the health of your other employees, the employer, you know, say, reasonably relies on that advice. Well, what if the advice turns out to be wrong? Does the employer have a good faith defense in that situation? We'll have to wait and see. Thanks, Evan. Thank you, Susanna. Now we'll turn to ERISA, the Employment Retirement Income Security Act. ERISA is another aspect of employment law. There were two ERISA cases this term. The first is Great West Life Company versus Newtzen. Janet Newtzen was seriously injured in an automobile accident. Her health plan, which was regulated by ERISA, paid her over $400,000 in medical benefits. The plan had a reimbursement provision giving Great West first lien on any recovery that planned beneficiaries received from a third party. After Newtzen received a settlement from a third party, the auto manufacturer, Great West and the health plan sued in federal court to recover the amount they had paid for Newtzen's benefits. Great West argued that it was entitled to seek enforcement of the plan's reimbursement provision under ERISA section 502A3. That section authorizes actions to obtain what the statute calls appropriate equitable relief to enforce any provisions of the terms of the plan. But the court in a five to four decision ruled against Great West. Justice Scalia noted that equitable relief referred to categories of relief typically available in equity as opposed to law. Great West, he said, was seeking legal relief, the imposition of personal liability on Newtzen for a contractual obligation to pay money. In dissent, Justice Ginsburg argued that Congress did not use equitable relief to signal its intention to enshrine in the statute what she called needless and obsolete distinctions between law and equity. Nor she said, given ERISA's goal of a uniform administrative scheme, did Congress intend to relegate claimants such as Great West to whatever unpreempted state relief they might be able to obtain. This term's ERISA preemption case, Rush Prudential HMO versus Moran, involved Illinois Health Maintenance Organization Act. Like laws in 40 other states, it directs an HMO when primary care physicians and the HMO disagree over a treatment to consult an unaffiliated physician. If she says the service is necessary, the HMO must provide it. Rush Prudential HMO provides medical services for ERISA-covered plans. It refused to pay for Deborah Moran's $95,000 operation, which a primary plan physician recommended and which an unaffiliated physician pursuant to the Illinois statute said was necessary. Moran asked a state court to order reimbursement. The HMO removed the case to federal court, claiming ERISA preempted the Illinois law. Although ERISA does, of course, preempt state laws that relate to employee benefit plans, it does not preempt laws that regulate insurance. But the five justice majority justice suitor concluded that HMOs are both health care providers and insurers in statutes that regulate their insurance practices as in Illinois are not preempted. There was also a broader claim that the Illinois procedure interfered with Congress's goal of a federal common law of rights and obligations under ERISA-regulated plans. Justice suitor said, although the procedure had some elements of arbitration, it was basically a mandate for a second opinion, required under many state's laws and hardly supplanted ERISA scheme for judicial enforcement. In dissent, Justice Thomas charged the court with eviscerating the uniformity of ERISA remedies that Congress sought in enacting ERISA. Now we'll turn to civil rights cases. We now take up seven cases about civil rights from just compensation under the Fifth Amendment to an effort to expand the 1971 Bivens decision. Joining me again are Evan Lee and Susanna Sherry. And Evan, let's start with that Fifth Amendment case, landowners in the Lake Tahoe Basin sued a local planning agency because a 32 month moratorium on all development, they said was a taking. Now there's a difference between physical takings and regulatory takings. Could you explain the difference and then tell us what the court held here? Well the difference between a physical taking and a regulatory taking would be a physical taking involves a formal condemnation procedure whereas a regulatory taking usually is the function of restrictive local ordinances. Under the court's recent jurisprudence, allegations of regulatory takings are analyzed under one of two rival approaches, either the Penn Central balancing test approach or this categorical bright line approach of Lucas versus Coastal Commission. The landowners in this case claimed that these moratoria totally deprived them of beneficial use during those 32 months and therefore that the Lucas rule, the categorical rule ought to apply but the court said no, even though it may have been total deprivation, it wasn't permanent deprivation and therefore the Penn Central balancing test ought to apply. So the court has now essentially backed away from Lucas to some extent, marginalized it and said the only regulatory cases that we're gonna analogize to the physical taking cases are the total and permanent deprivation. Okay, let's move from property to liberty and take up the case from Kansas. Five years ago in Kansas versus Hendricks, Kansas versus Hendricks, the court upheld this sexual violent predator act, sexually violent predator act from Kansas, which provides for civil commitment after a predator has served the criminal sentence, assuming that proper procedures are in place, there is a showing of dangerousness in the part of the inmate and that showing is linked to some other evidence of mental illness or abnormality and 16 states have these laws now. Kansas was the first, about 1200 people are incarcerated under them or under civil commitment under them. Crane, Michael Crane, objected to the application of the statute to him, particularly to the claim that he can control his behavior, his dangerousness and the court, in an opinion by Justice Breyer, walked a fairly fine line between the two sides of this issue. What did they say? Well, the court said that the state didn't have to prove a total lack of control, but needed only to prove serious difficulty in controlling behavior. And you say the court's walking a fine line is fine indeed. I mean, obviously the court is desperate to distinguish the sexually violent predators on the one hand from the rest of the general prison population. On the other hand, one possible way to do it is mental abnormality, but then you're faced with the statistical reality that a very high percentage of the prison population could be clinically diagnosed as being mentally abnormal. So then you're left with volitional control, essentially, as a way to distinguish. And the court's relying on that, but what happens if the court turns out to be wrong? What happens if the volitional control of sexually violent predators turns out to be not that different from other identifiable subgroups in the prison population? Then what? Okay, thanks Evan. You know, Susanna, Justice Scalia in dissent strongly criticized the majority opinion, instead of didn't give judges a clue as to how to charge juries in this case. Yeah, so this isn't the only case. He also complained about this case in his concurrence. In another case we talked about earlier, the US Airways case, in which the majority adopted a rule that said that a seniority system could sometimes, but not always trump a request for a reasonable accommodation. And Justice Scalia in both of these cases wanted to adopt a per se rule, and he criticized the majority for instead adopting a fuzzy rule that will give lower courts no guidance. So I think this tells us that the court is being a little less formalist, a little more pragmatist than Justice Scalia would like this term. Less formal than he would like anyway. Thanks. Let's stay with you and ask about this case of hope versus pelzer, which involved Alabama prison guards in 1995, a handcuffing Larry Hope to a hitching post restraining bar called what you will with his arms above his head for seven hours in the sun without water or bathroom breaks. The Court of Appeals said clearly this violated the Eighth Amendment, but the guards they said had qualified immunity because it wasn't clear to a reasonable person at least in 1995 that this was unconstitutional. Courts generally have been expanding qualified immunity doctrine, but it went the other way here. How come? Well, the court did reverse the 11th circuit finding of qualified immunity and what the court held was that you don't have to have prior cases directly on point in order to give guards notice or officials notice that their conduct violates the Constitution. You only have to give them fair notice and fair notice can be satisfied in a number of ways and in this case the court held that the guards had fair notice that their conduct was unconstitutional partly because it was just inherently and obviously unconstitutional, but also partly because there had been some early or 11th circuit cases which while not directly on point were close enough to give the guidance to the guards. And it might be harder to show fair notice on less egregious facts. Yes. Oh, we'll see what happens. Evan, let's turn from suits against state officers to suits against federal officials. 30 years ago in Bivens, of course, we all know the court recognized an implied right of action against federal officers for Constitution violations. This term, John Molesko asked it to expand the Bivens doctrine to reach private prisons, Correctional Services Corporation, which is on contract with the Bureau of Prisons, and contrary to policy, forced Molesko to walk out some stairs. He had a heart attack, injured himself, and asked the court to allow him to proceed under Bivens. What did the court say about Molesko's efforts and what did it say about Bivens generally? Well, first of all, the court said that Bivens only applies to government officers. It does not apply to government contractors. And as far as the general guidance from this case, it's pretty clear Bivens is not gonna change. It is not going to be expanded any time soon. And even Justice Scalia was willing to say it's not gonna be overruled any time soon. So it sits there pretty much as we got it in the 70s and with one case expanding it. We've had a lot of litigation before the court in the last recent years involving the prison litigation reform mechanism. It's a requirement that before inmates file section 1988 suits, 1983 suits, they exhaust their administrative remedies, complaints about prison conditions. Here we have Ronald Nussle, who claims he was beaten up by a guard. And he said, one beating is in a condition. Why can't I go straight to court? But meeting the past precedent, it's not hard to figure out how the court would come out here. Yeah, I think the message from these cases is pretty clear. And that is, you are complaining about a prison condition, you have to exhaust under the PLRA. We saw that last term in Booth versus Turner where the court said, well, even if the administrative scheme doesn't afford you the kind of remedy that you're seeking, you still have to exhaust. And in this case, the court says, look, excessive force is a prison condition, which isn't obvious, so that's a new holding, and says you have to exhaust, even though that excessive force may have been only against you individually and not the general prison population. In just one time. Yeah. And another thing that the court says here is, look, we can't rewrite this statute either to preserve the common law of exhaustion as it existed before or to avoid the constitutional question. Okay, thanks Evan. And Susanna, another case involving refusal to rewrite a statute, the federal housing statutes tell public housing agencies to include in their leases a provision providing for the eviction of tenants in the case of illegal drug activity. Let me read what the statute says. Illegal drug activity by a public housing tenant, any member of the tenant's household or any guest or other person under the tenant's control. Perley Rucker said in the court of appeals agree, well, that can't mean illegal drug activity I don't even know about. The court said yes it can. Yes, the court, as it did in Porter v. Nussle, said this is what the statute says and they're only gonna look at what Congress said they will not rewrite it to ameliorate its harshness. An interesting side point in this case though is that at the very end, they said, and by the way, this statute is constitutional. So they have given Congress quite a free hand in regulating subsidized housing. Okay, thanks, Suzanna, and thank you, Evan. We'll take a five minute break and then take up this term federalism in schools, cases and several others. In this section of the program, we'll deal with federalism in schools as well as a bankruptcy decision, class actions, the judicial disqualification statute and intellectual property. Four cases this term dealt with the jurisdiction of the federal courts or executive agencies to hear private suits against states. Irwin Chemerinsky and Suzanna Sherry will take us through them. Irwin, let's start with you and this suit grew out of a dispute between Verizon and WorldCom, particularly acclaimed by Verizon that a Maryland Public Service Commission order was preempted by federal statute and the response of the commission was, well you can't sue us in federal court in any event. Eight to nothing, Justice Scalia writing the opinion the court said, oh yes, federal court jurisdiction is open here. The court emphasized that state officers may be sued once allegedly violated the Telecommunications Act. The court reaffirmed state officers may be sued once allegedly violated the federal statute. The case is also important because it clarified what the Supreme Court said in Seminole tribes six years ago. Their Chief Justice Randquist's opinion said that there wouldn't be ex-party young actions to enforce federal statutes that are a comprehensive enforcement mechanism. But here, Justice Scalia writing for the court says that that exception to ex-party young applies only if Congress clearly meant to foreclose ex-party young actions. So you have to look at the statute. Exactly, and it's legislative background. Okay, thanks Irwin. Susanna, two rather arcane but very important jurisdictional cases. The first one is Ray Gore versus University of Minnesota. It is an action in federal court claiming age discrimination, both violation of federal and state statutes. And what's important here is the supplemental jurisdiction statute. Tell us what the court decided in this case and then we'll try to figure out its impact. Well, what it held is that the supplemental jurisdiction statute, section 1367, does not toll the statute of limitations for state causes of action brought against the state in federal court. So that means that if a state cause of action is brought under supplemental jurisdiction in federal court and is at any time dismissed if the statute of limitations has run, it is not told it cannot be brought in state court. Now what's interesting is that the court interpreted the statute using constitutional federalism principles, some of the 11th amendment cases that it has decided in the past, suggesting that any other interpretation of the statute might violate the 11th amendment. Now federal trial courts I think need to be aware of this case when they are exercising their discretion, whether to dismiss or not, because if they do dismiss a state cause of action under 1367, it may turn out that the plaintiffs don't have an available state forum. I think Suzanne is absolutely right here. The federal court has a situation where the federal claims are dismissed and all the women are state claims and they're time barred, the federal courts can decide what to do. It could exercise discretion to dismiss the federal claims, even that means the state claims will be precluded. It could exercise this discretion to hear the state claims, even that's all that remains in federal court. What it might do is say that it would dismiss the federal claims, but only on the condition that the state would allow them to be filed in state court. Also I think down the road, this could end up posing some difficult race judicata claim preclusion issues for federal courts. Imagine that a litigant decides to simultaneously file the state claims in state court to preserve the statute of limitations. Then whichever court, federal or state decides first, will have claim preclusion effect on the other. I think federal courts will see that in the future. And litigants are gonna have to make some choices as well. That's right. Let's stay with you. The other case is Lopides versus the Georgia Board of Regents. This was a suit by a professor against the Board of Regents as an agency and the individual members in state court. The individual members removed it to federal court and the Attorney General of Georgia went along with respect to the board. And then he asked for immunity once he was in federal court and the Supreme Court, opinion by Justice Breyer, nine to nothing said no. Once the case was removed to federal court, the federal claim dropped out. And so all that was left in federal court was state law claims. And it turns out that Georgia had waved its sovereign immunity in state court as to the state law claims. So the Supreme Court's holding was narrow. The Supreme Court said if all there are are state law claims and the state has waved its sovereign immunity as the state law claims, then removal from state to federal court is a waiver of sovereign immunity. I think the fact that the case is very narrow means that the court left open two fairly important questions. One is what if the state had not waved its sovereign immunity in state court? And the other is what if the state had been sued on a federal cause of action and had removed it to federal court? And the court doesn't answer those questions. We'll look for that. Let me ask you one final question. Are there other waiver circumstances? There are many waiver issues still to be resolved. What other behavior by state attorneys might constitute a waiver? In the bankruptcy context, for example, section 106B of the bankruptcy act says that if a state files a proof of claim in bankruptcy court, that's a waiver of sovereign immunity. Well, after this case, should that be regarded as constitutional under the 11th Amendment? What other behavior by attorneys state in pretrial proceedings should be regarded as a waiver? There's actually a split among the lower courts that issue, and the Supreme Court's going to have to return to it in the future. OK, we'll watch for that. Thanks. Finally, I guess the biggest case this turns, Susanna, was Federal Maritime Commission versus South Carolina Court's Authority. Obviously, the 11th Amendment limits the reach of the judicial power of the United States. The question here is, does it limit its reach as far as executive agencies are concerned? This was a case in which a cruise line complained to the Federal Maritime Commission that the state agency was violating the Federal Shipping Act. Five to four, the court said they couldn't bring this action before the Maritime Commission. Why? Well, it's the same five to four split that we've seen in earlier 11th Amendment cases, and it simply reaffirms that the 11th Amendment does not mean what its language says. It's much broader than that. It protects states generally from federal suit. So the court held that the Maritime Commission couldn't be sued. I'm sorry, that the Maritime Commission had no authority to adjudicate individual suits against states, even though the Maritime Authority had no enforcement power of its own, it would have had to go to the federal district courts. The court said that, nevertheless, it is an affront to the state's dignity to force them to appear before the Commission. Essentially, what the court said is that this particular agency proceeding looks like a judicial proceeding, acts like a judicial proceeding, and then they're going to treat it as if it were a judicial proceeding. Judge Wilkinson's words, it walks, talks, and squawks like a lawsuit. Does that mean if there's an agency proceeding which is much less judicialized, much less formal, the 11th Amendment might not create the immunity? That's not clear. The court didn't answer that. But it did make clear that the agency is permitted to bring its own suits against states, because those are suits by the United States and they're exempt from the 11th Amendment. So it's possible that agencies might bifurcate their proceedings, allow an individual to bring the matter to their attention, but then the agency itself would have to litigate. And I think the case is important in a number of respects. Justice Thomas writing for the court says, the central purpose of sovereign immunity is to take the dignity of state governments. Always in the past, the court had emphasized sovereign immunity as being about protecting state treasuries. Also, Justice Breyer wrote a very forceful dissent. He said, this decision would make much harder to enforce health and safety laws against state governments. We'll have to see how that develops in the future. More federalism cases. Thanks, Erwin. Thank you, Susanna. Next, we'll take up cases involving bankruptcy, class actions, and the judicial disqualification statute. Before turning to this term's cases about schools, I want to summarize a bankruptcy case, a case involving class actions, and one involving the judicial disqualification statute. Young versus US involved debtor's use of successive petitions and the so-called three-year look-back period to gain a discharge of back taxes owed. Section 507A881. In combination with other provisions, excludes owed taxes from discharge if the petition is filed more than three years after the due date for the tax returns, including extensions. The Youngs filed a Chapter 13 petition two and a half years after they filed a late tax return, but not the taxes owed. Their plan was never confirmed, and thus the IRS did not secure its claim for the taxes due. Shortly after the three-year anniversary of their tax return filing, they asked the court to dismiss their Chapter 13 petition, and one day before dismissal, they filed a no-asset Chapter 7 petition. The court granted the discharge and closed the case. When the IRS tried to collect the unpaid taxes, the Youngs told the judge that they had filed their petition, that's the second Chapter 7 petition, more than three years after their taxes were due, and asked for a declaration that their IRS debt had been discharged. But the bankruptcy judge said that the look-back period is total, suspended, while a prior bankruptcy petition is pending. That brought the Youngs Chapter 7 filing within the three-year period. The Supreme Court, nine to nothing, agreed. The look-back period, in Justice Scalia's words, is a limited statute of limitations, and limitations periods are customarily subject to equitable towing. Although the first circuit decision that the court affirmed here said that the towing was automatic, Justice Scalia appeared to endorse equitable towing. The bankruptcy bill in a House Senate conference in mid-July of 2002 would amend 508 to do pretty much what the court did in Young. If that bill becomes law, we'll present a program here on the FJTN explaining its major provisions. The class action case is Devlin versus Scarlatti. A union retirement plan's trustees and the plan's named class representatives agreed to reduce cost of living benefits. After the trustees sought approval of the settlement, Robert Devlin, a retiree, sought to intervene. The district court denied Devlin's motion as absolutely untimely. Devlin objected to the settlement at a fairness hearing, but the court approved it. Devlin noted his appeal of the settlement order, but the court of appeal said he had no standing to appeal because he was not a named representative and had been properly denied the right to intervene. The Supreme Court reversed six to three. Justice O'Connor acknowledged that only parties to a lawsuit may appeal an adverse judgment, but she said the court has never restricted the right of appeal to named parties. Devlin, a non-named class member, was a party in the sense that he was bound by the settlement and thus must be allowed to appeal that part of the court's order that affected him, the decision to disregard his objections to the settlement. Essential to Devlin's ability to appeal was the fact that he had objected at the fairness hearing. The court also said that non-named class members did not have to intervene in order to appeal settlement orders. In dissent, Justice Scalia echoing a theme of his that Susanna Sherry noted earlier called the court's assertion that rules governing party status differ based on context, an example of this terms eschewing bright line rules that might avoid litigation. Sampalo versus American tobacco involved 28 USC section 455A, which directs judges to disqualify themselves when their impartiality might reasonably be questioned. Well prior to his judicial appointment, the district judge in the Sampalo case had been listed on a pro forma amicus motion in separate litigation involving one of the respondents. The listing was an error, but the court of appeals said 455A required his recusal in Sampalo because a reasonable person might nevertheless doubt his impartiality. The Supreme Court, in a short procuring opinion, said recusal was required only if a reasonable person, knowing all the circumstances would question the judge's impartiality and that when the facts of this case are taken into account, it is self-evident that a reasonable person would not believe that the judge had any interest or bias. Now to the school cases.