 The Federal Judicial Center presents Supreme Court 1997-98 The Term and 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. Hello and welcome. This is the Federal Judicial Center's annual review of the Supreme Court's just completed term. This term the court gave plenary review to over 90 cases, reversing the court below about 60 percent of the time. In this review we'll discuss 52 of those 90-some cases. With help from our board, our Judicial Education Committees, and Judge Riaz-Obel, the Center's director, we've selected cases we think will show up in the pleadings, briefs and motions submitted to you. But differently, the court invalidated the line item veto statute this term, but that's about all we'll say about Clinton v. New York. Our review is in three parts, each about 30 minutes long. Your written materials have summaries of the cases we'll discuss, in the order we'll discuss them, and brief biographies of the law professors who will be describing and commenting on the cases. They are well qualified not only to summarize the court's work, but also to provide different perspectives on this term's holdings. Let's turn to five cases involving the First, Fifth and Seventh Amendments. Joining us to discuss them are John Garvey of Notre Dame Law School, and Lori Levinson of Loyola Law School in Los Angeles. John, a public forum analysis showed up in both the First Amendment cases this term. National endowment of the arts versus family grew out of the maple-thorpe controversy, and Congress' efforts to channel grant-making by the NEA. What did the court hold? Well, one of the difficult problems in this area is to tell when the government can impose or limit its fund allocation to people whose point of view it likes. In some earlier cases involving the funding of abortion and family planning clinics, the government would restrict family planning funds and not allow them to be used for abortion. You remember a couple of years ago, the University of Virginia gave money to magazines, but not to Christian magazines. And the first kind of restriction the court said was all right in rust against Sullivan, the second sort of restriction it said was not all right in Rosenberger. What happened in Finley was, in 1989, you remember this flap over Robert Mabel Thorpe's photographs and Andres Serrano's photographs. This angered a number of people in Congress, and as a result, Congress imposed on the endowment requirement that when it hand out money it considers standards of decency and respect. So Finley sued to complain about this restriction, and the court made two suggestions for why this sort of restriction might be okay. One was they said that there's a difference between the sort of consideration requirement that Congress imposed, which we might call an input control that Congress said that the endowment had to consider standards of decency and respect. It didn't say that it couldn't fund indecent or disrespectful art. This is kind of like the solution we've adopted for affirmative action cases. In admitting people to higher education institutions, we consider race as a factor, but we don't set seats aside. The other solution that the court suggested was that we ought to look to see whether there was a limited public forum. In a case like Rosenberger, the one from the University of Virginia, it was all right, it would have been all right if Virginia had restricted its money to a smaller group of grantees, but because it was giving them to all magazines, they couldn't keep them away from just specifically Christian magazines. With the endowment, on the other hand, when the endowment hands out money, it's necessarily restricted to a small group of excellent artists, and so that's a limited public forum where Congress can impose some controls on who gets the money. Thanks, John. The other public forum case, Lori, came from Arkansas in a candidate's debate on public television. This is Arkansas Educational TV versus Forbes. Again, what happened there? Well, in this case, the court looked at a case where there was a state-sponsored public television debate of candidates, and they didn't want to put on all the candidates, so they excluded one Forbes who they thought was not viable. The Supreme Court said you can do that. In fact, because this is not a public forum, there's not even a strict scrutiny standard that applies. As long as they have a viewpoint neutral basis for excluding the candidate, they can do so. Well, Ralph Forbes was a candidate they didn't think was viable. They said it's not a public forum because it's not like a street or a park, it's not a government-created public forum. It's much more like when a public university goes out and invites certain speakers to participate, or when the combined federal campaign says we'll use certain charities, in that situation they can pick and choose as long as it's viewpoint neutral. In fact, the Supreme Court made a point of saying practically, if you required them to use all the candidates, you'd never have these debates. You said, of course, they didn't think Forbes was viable in Arkansas, and the majority of opinion agreed with that and painted a picture of Forbes as a marginal candidate. I read the dissent, however, and he looks like much more of a viable candidate. I guess that suggests the importance of making a record in these non-public forum cases? I think that's right. For the district courts, they're going to have to make findings, one, to see if there are the standards that they use that are viewpoint neutral. But second of all, Forbes very well could have swung the election one way or another, and you have to figure out, is this a viable candidate? You know, Lori, I'm not at all surprised that the court came out the way it did, because this is what happens when we hand out campaign finance money. And I think the court's right to say that this was not a public forum, because when the government edits TV shows, it necessarily takes a point of view. The problem is that the very facts that make it a non-public forum are ones that indicate that this is a case of viewpoint discrimination. The court defended what Arkansas TV had done by saying that they were just adopting the public's point of view about Forbes, but that's no defense to viewpoint discrimination. I think the only way out of this problem is to have the government get out of the business of deciding who appears on TV. Thanks, Lori. John, let's talk for a second about the Fifth Amendment case. This is the case of Phillips. It's Texas Chief Justice Thomas Phillips against Washington Legal Foundation. A lot of people are watching this case. It involved IOLTA funds. Did the court tell state bars, for example, you can't use this IOLTA money anymore? Well, no, that's not settled yet. And it's unfortunate because since 1980 all of the states have adopted these IOLTA programs. What they do is this, lawyers are often in the position of holding small sums of money for their clients or holding larger sums for a short term. And the lawyers can't put these in custodial accounts because the interest that they'd earn would be more than eaten up by the cost of setting account and by accounting fees and by tax reporting charges and so on. So what they do instead is they dump them all in an IOLTA account where the money is used to pay for legal services or the interest that the money altogether earns can be used to pay for legal services. Now the claim that was made against this practice was that the money belonged to the client, the interest belonged to the client whose money it was. And the Supreme Court did hold that the interest follows the principle. And in that sense it's the property of the client but that's not the end of the matter because in takings cases the first question is whether there's property. But the second is has the government taken it and the third is if the government has taken the property what's the measure of just compensation? The last two questions are left open after this case. For example on the question of whether there's a taking, remember my saying a minute ago that when the government, if these funds weren't put in an IOLTA account they couldn't earn interest because it wouldn't be possible to pay all the charges. So it may be that there's no taking because it's a case of no harm no foul. And even if there is a taking there's remains the question of what's the measure of just compensation and usually in these cases the measure of just compensation is the plaintiff's laws not the government's gain. John do you think it makes any difference whether this is an IOLTA created by the state supreme court or by a legislature? No I don't think it makes any difference because what the eminent domain clause says is nor shall private property be taken for public use without just compensation. It doesn't say who ought to be taken it's in the passive voice. So as long as there's state action as there is when the state supreme court does it there's a problem. But as I said this case is not the end of the matter. We're likely to get more litigation that will resolve those second two questions. The first amendment the fifth amendment let's go to the seventh amendment. Real quickly this Feltner case involved jury trials under the copyright act. Right under five. It clarified some circuit disputes. Under 504c plaintiffs are bringing statutory damages act thinking they could avoid a jury trial. The supreme court said no even though the statute refers to the court deciding damages given that it's a common lawsuit the defendant is still entitled to a jury trial for statutory copyright act violations. And the other right to jury trial case was Hetzel. That was a pretty simple case. Very simple. The court decided percurium in this situation that when there's a remittiter the plaintiff has the choice either take the remittiter or go for a new trial. Percurium unanimous opinion. Absolutely. Thanks Laurie. And thanks John also. In a moment we'll take up some civil rights cases. The court decided some important cases involving section 1983 title seven and title nine in the Americans with Disabilities Act. With us to discuss them are Erwin Chemerinsky of the University of Southern California law school in Susanna Sherry of the University of Minnesota law school. John Garvey will join us later for discussion of two cases involving the Americans with Disabilities Act. Erwin let's start with cases under 42 USC 1983. The case of Crawford L was about what plaintiffs have to show to prove impermissible motive. You tell us what the court said. I think the case is most important for what the court didn't do. The issue is when there's a claim against an individual officer what's the standard of proof with regard to impermissible motive? In Harlow versus Fitzgerald in 1982 the Supreme Court said that the standard for qualified immunity is an entirely objective one. Did the officer violate a clearly established right that a reasonable officer should know? The Supreme Court rejected any decision. But what about the situation where the constitutional right itself involves a claim of impermissible motivation? That was the facts of Crawford L. It was a prisoner who claimed that the prison had delayed in giving his possessions in retaliation for his first amendment behavior. The United States Court of Appeals for the District of Columbia Circuit in an unbunked decision said that when there's a claim of impermissible motivation it the DC Circuit said this was to effectuate Harlow versus Fitzgerald's emphasis on an objective standard. The United States Supreme Court reversed in a five to four decision. Justice Stevens wrote the opinion for the court. Justice Stevens said there's nothing in 1983 where it's legislative history or the federal rules of civil procedure that justifies a higher proof requirement when there's a claim of impermissible motivation. It's interesting that Justice Kennedy said that he agreed with the dissenting opinions policy arguments in favor of a higher proof requirement, but he said it would be for Congress, not the courts to make that change in the law. Let me ask a question that a trial judge is reading this opinion. We'll notice at the end of Justice Stevens' opinion a litany of case management tools that he recites, limiting discovery for example, as ways to deal with these kind of cases. What should we see there? There's nothing new in the list. They're all what court judges use all the time. Justice Stevens said, for example, there could be a deposition focused solely on motivation early in the proceedings where discovery could be on the facts apart from motivation. There can be aggressive use of summary judgment. There can be rule 11 sanctions, all techniques regularly used by district courts. Erwin, what I think is interesting about this case is that in it the Supreme Court did something that it's done in a lot of cases this term. It rained in some lower courts with the guidance from the Supreme Court. Now in this case the lower court had imposed a defendant friendly standard and the Supreme Court rained them in. And in some other cases the Supreme Court is raining in lower courts that impose more plaintiff friendly standards. That's a good point. I agree with you. That's a good point and it will be showing up in other aspects of our review. In fact, let's go to a case where it does. That's Sacramento v. Lewis involving high speed police chases. It's a question of when the government is libel under the due process clause for the unintentional taking of life. The Ninth Circuit had said that the government is libel whenever the government agent acts with reckless disregard or deliberate indifference. And the Supreme Court reversed and imposed a much higher standard on the plaintiff saying that the plaintiff cannot recover unless he can prove that the behavior shocks the conscience. They took that language from an old case called Roshan v. California back in the 50s involving stomach pumping. Now, although the case itself involved a high speed chase, it will have broader implications, but the court made very clear that it's going to be a case by case decision. The reckless disregard and deliberate indifference standard will still apply in cases where the officers do have time to deliberate, for example, in deciding whether to give medical care for somebody in custody. In cases where they don't have time or where they have conflicting obligations, such as high speed chases or prison riots, then the standard is the shocks the conscience standard. I think what's notable is how restrictive Justice Souter's definition is of shocks the conscience. He says in order to show that the officers' behavior shocks the conscience it must be proven that the officer intended to bring about harm to the victim, that seems in the most impossible standard to meet. Are there any implications in constitutional tort litigation? Yes, and the court made quite clear that it wants the case to have broader implications that constitutional torts are a very specialized kind of tort and liability is simply not as easy to find as it is in common law torts. And yet the court left open substantive due process as a basis for a claim. I thought that there was a chance that the entire court might go was Scalia and Thomas went in their concurring opinions and the fourth amendment are not at all but the majority did say that substantive due process can be used but it's a standard that will be very difficult to meet in any high speed chase case. Thanks Susanna for that discussion. Thanks Erwin and Erwin. Let's move on to immunity under 1983. A case from the Seattle area involving prosecutorial immunity. This is Collina V. Fletcher. What was the holding there? The Supreme Court again tried to clarify the line between when prosecutors have qualified immunity. As you know the Supreme Court has dealt with that issue on several occasions and said prosecutors have absolute immunity for the prosecutorial acts but only qualified immunity for an investigative acts. In Imla versus Pacman and Burns versus Reed and Buckley versus Fitzsimmons the court articulated that distinction. What Collina versus Fletcher involves a prosecutor who requested an arrest warrant but also submitted a sworn declaration in support of the arrest warrant. There are false statements in the sworn declaration. A suit was brought against the prosecutor. The Supreme Court said prosecutors have absolute immunity when they request the arrest warrant because that's a prosecutorial act. But prosecutors only have qualified immunity for the declaration in support of the arrest warrant because that's a task usually performed by police officers and thus investigative. So the court adheres to the distinction between absolute immunity for prosecutorial acts but only qualified immunity for investigative ones. And in a sentence or so Susanna the other immunity case involved local legislatures. This is Bogan v. Scott Harris. Yes in Bogan the court held that local legislators like legislators at all other levels are entitled to absolute immunity for legislative acts and the court defined legislative acts quite broadly granting the immunity not only to the city council members who had proposed but also to the mayor who had proposed an ordinance and a budget. So it is absolute immunity and it is quite broad. Broadly read. Thanks Susanna. Erwin I want to go to the two big Title 7 cases that came down this term. Both involving employer liability for sexual harassment. A case from the 7th Circuit involving a Chicago office worker this is the Elworth case and then one from Florida involving a lifeguard the Farragher case. There's some pretty serious issues. Farragher v. City of Boca Ratan in Burlington industries versus Elworth I think are among the most significant rulings of the term. When you look at the two cases together there were three parts to the holdings. First the Supreme Court reaffirmed that there's no requirement for proof of tangible harm when there's a hostile environment sexual harassment claim. Second the Supreme Court said that employers are vicariously liable for sexual harassment by supervisors but there is an affirmative defense if there's no proof of tangible harm. Third the Supreme Court said employers are vicariously liable for sexual harassment but there is no affirmative defense if there is proof of tangible harm. Farragher involved a lifeguard in Florida who's repeatedly subjected to offensive touching and offensive language. Burlington industries involved a woman who was subjected to harassment for her first days on the job. Court treated both as hostile environment cases. Just in the sentence what's Burlington going to have to show on remand? Elworth didn't suffer no tangible harm. There's no tangible harm there's a two-part affirmative defense both must be met. First the employer must prove that reasonable efforts were taken to prevent and remedy sexual harassment. And second the employer must prove that the employee did not make reasonable use of the mechanisms that were available to prevent and remedy sexual harassment. We're not ready in some sense that both women's groups and most employers welcome these decisions what about federal judges? What kinds of demands might these place on them? I think these cases put significant demands on federal judges because they leave open as many questions as they resolve. For example, who is a supervisor? There's one sentence in the opinion that says who is a supervisor is determined by actual authority not apparent authority but there's no other elaboration. What's enough to prove that there's an adequate authority? What must the policy say? What kind of training must there be? What's enough for the employer to prove that the employer didn't make reasonable use of the procedures available? None of these questions are clarified by the Supreme Court. All are left to the lower courts. The lower courts are going to be struggling with reasonableness on both sides of this equation. Very much so. Thanks sir. We'll watch for that perhaps in later reviews. There was also Susanna a Title 9 case as in these two Title 7 cases. No, in the Gebser versus Lagovis to school district the court held that unlike Title 7, Title 9 does not impose vicarious liability on school districts. That the school district is not liable unless an official with power to remedy the problem both knew about the harassment and failed to take steps to remedy it. The court distinguished Title 7 in two ways. First they said that Title 7 creates a private cause of action whereas in Title 9 the private cause of action was judicially implied and the court wanted to be more cautious about remedies and imposing liability in that case. And second the court pointed to Title 9's provision for cut off of funds. Title 9 under Title 9 the fund cut off cannot happen unless the offending entity has been warned has been given notice and has failed to take steps to remedy the problem and the court concluded from that scheme that Congress didn't intend to impose liability on an unknowing school district. This is the court doing its best to make sense out of the statute. Yes it was. And just as Ginsburg in her dissenting opinion has urged Congress to amend Title 9 to make clear that responding to its superior liability would be allowed under it. And I think there's been some talk in the legislature already how far it will go is a different matter. And Susanna let's stay with sexual harassment cases but go to the case from the Fifth Circuit on CalV Court. This is so-called same-sex sexual harassment. This is a case that got a fair amount of publicity in the media. What did the court say here? Well actually the court made a very short unanimous unsurprising result was that yes a man can sue for sexual harassment even if his harasser is a male. It was actually a fairly easy case because the Fifth Circuit had held that no man ever has a cause of action for sexual harassment so that was easy to reverse. A relatively short opinion by Justice Scalia. And Justice Scalia says in that opinion that he recites some of the other cases that may come along and says if courts use common sense they're going to be able to get through these other fact patterns that come along. That's the way I read the opinion. If I read it correctly is he being overly optimistic? I think he is a little too optimistic because there are some hard questions coming up. For example under the old sex plus cases if an employer discriminates against a woman with children when it would hire a man with children that is sexual discrimination. So what happens if an employer harasses or otherwise discriminates against a feminine male and the employer does not discriminate against a feminine females that seems to violate Title 7 under these various precedents and yet that could lead to turning Title 7 into protection against sexual orientation discrimination which is clearly not what Congress intended. So there are some very difficult questions that lower courts are going to have to struggle with after this case. I strongly agree. I think lower courts are going to face a very difficult question of what does it mean to prove that the harassment is based on gender. There's surprisingly little guidance in Scalia's opinions to that which is the key question. That's the phrase. Thanks Irwin. In 1990 the Americans with Disabilities Act joined the body of federal civil rights laws. John Garvey returns to discuss two ADA cases that the court decided of this term. John, one of those cases involved the dentist who refused to treat at least in his office an HIV patient person who hadn't developed as I say full blown AIDS. What was the holding of the court in this case of bragged and v. Abbott? Well, there were two questions in bragging against Abbott and one of them was whether a symptomatic HIV is counted as a disability for purposes of the act. As you know when people contract HIV in the first stage for the first six months or so it's fairly active in the blood stream and you have mononucleosis like symptoms but during this what we call asymptomatic it's not actually there are some noticeable symptoms but for a period of seven to ten years when it travels to the lymph nodes and resides there it doesn't seem that it affects your day to day life and it's only after that that it becomes AIDS and much more obviously serious. But the question was whether during this period of asymptomatic HIV infection you had a disability for purposes of the ADA. Abbott wanted to get treated by her dentist for a cavity and he said he'd do it but in the hospital rather than in his office and she sued him under the ADA. So as I said one of the questions was whether this was a disability and this was not a particularly difficult question everybody on the court agreed that it was a physical impairment and Abbott claimed that what the statute says in section 302 is that it has to substantially limit one of your major life activities and Abbott said that in her case the major life activity was her ability to reproduce because there's a pretty good chance one in four, one in five of you are infecting your partner or the child because the statute actually says major life activity of such individual and there was no proof that Abbott herself was interested in real life in getting pregnant but that part of the case I think was fairly easy. I think that the holding that reproduction is a major life activity is going to have the most impact. Most courts had in fact already held that asymptomatic HIV was a disability but the holding that reproduction is a major life activity is going to have implications far beyond AIDS it's going to have implications for infertility for example if an insurance carrier refuses to cover infertility treatments is that discrimination under the ADA or if an employer who's under a duty to accommodate disabilities refuses to give time off for an employee who's undergoing infertility treatments I think that also will raise questions under the ADA. I'm glad you brought that point out Susanna. John let me ask you to delay discussion until later in the review of the third question which the court granted cert in this case that involved basically how to assess the objective reasonableness of a healthcare professional's judgment that treating a person with a disability would pose a threat to the health and safety of others. We'll talk about GEV joiner and some other science cases later and we'll take that case. It makes sense to talk about the evidence in the case then but let me just emphasize right now that as I said there were two questions in the case one was whether asymptomatic HIV was a disability. The second question is whether it comes within the exception in the ADA for infections, diseases that pose a direct threat to health and safety and what the court didn't decide and remanded for was a decision about whether asymptomatic HIV was at the time of this case contagious enough to come within that exception. Good point I'm glad you made that. Let's finish up with the another ADA case. This is from Pennsylvania. Pennsylvania Department of Corrections, the Yeski. This is involved a boot camp as it were in a suit under the ADA. This is a case that I think will probably lead to a lot of lawsuits if our experience under section 1983 is any indication. Yeski was a prisoner in a Pennsylvania state prison and Pennsylvania had a program which they called a motivational boot camp that Yeski was anxious to get into. First time offenders who had the privilege of going through this camp got out of prison in six months and Yeski himself was sentenced to 18 to 36 months and he was denied admission to the motivational boot camp because he'd had a history of hypertension so he, like any right thinking prisoner, sued and tried to get in. Now the case turned out to be an easy one. A unanimous court decided that when Title II talked about a public entity, although Congress might not have been thinking about prisons that didn't really matter. The language was pretty plain and Justice Scalia had no trouble concluding that so far as the statute was concerned, prisons were covered as public entities. Now what the court did not decide in fact expressly did not decide was whether Congress had the power to pass a statute like this and a few years ago I would have said that was an easy question that Congress could do it under the Commerce Clause or under the 14th Amendment but both of those are harder questions nowadays because a few years ago in Prince the court said that in Commerce Clause cases there's a limit on what Congress can do in telling state officials how to behave and in Lopez they said maybe have to think about it being commercial activity so I'm not clear on whether Congress can do it under the Commerce Clause. Under the 14th Amendment once again the history of the Voting Rights Act suggests that Congress can go beyond the courts in saying what the 14th Amendment protects but when the court struck down the Religious Freedom Restoration Act in Bernie against Flores last year it signaled that Congress might not be able to go beyond the court and maybe that's also true of the ADA. And John which clause Congress has power under the Commerce Clause or the 14th Amendment also makes a difference because of the 11th Amendment. The 11th Amendment protects states from being sued gives them sovereign immunity Congress is permitted to abrogate that immunity and allow them to be sued in federal court but only where Congress is acting under its 14th Amendment power the case of the Seminole Tribe case from two terms ago said that Congress cannot abrogate immunity when it's acting under the Commerce Clause. So even if the court finds that there is for example Commerce Clause power but not 14th Amendment power the statute will stand but states will not be assuable under it in federal court. So these, Erwin you made the point this was not a term with auto blockbuster constitutional cases but they did enough in recent terms to last us for a while. Thanks very much John. Thanks Erwin. Thanks Susanna. That concludes the first part of this three part review of the Supreme Court's 1997 term. Thank you for joining us. I hope you'll join us for part two which will deal with criminal law and procedure decisions. Please take a moment if you would to complete the evaluation forms we've provided you. Good day.