Legal Corner: Midterm U.S. Supreme Court Update

Adapted from Lisa Soronen, State and Local Legal Center (SLLC), Washington, D.C.

The U.S. Supreme Court began its term last October hearing a myriad of cases about public unions, qualified immunity, population distribution for purpose of redistricting, and other cases that may impact local governments.

In addition to the important cases before the Court, this session has been impacted by the death of Justice Antonin Scalia in February who served nearly thirty years on the Supreme Court. The Court continues to issue decisions although the vacancy may change the outcome of several cases and it has already impacted one case resulting in a tied vote.

On March 16, 2016, President Obama nominated Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, to serve on the Supreme Court. While the confirmation process for a new justice continues to unfold, this article highlights the decided cases for this term including those recently decided by eight justices. The State and Local Legal Center summarized several of these cases, which have been adapted to specifically address items of interest for Arizona cities and towns.

Public Sector Unions
In Friedrichs v. California Teachers Association, 2016 WL 1191684, (U.S. Mar. 29, 2016), the petitioners argued that it is a violation of freedom of speech and association for non-union employees to be compelled to join and support a union as a condition of employment under "agency shop" laws. The petitioners sought to overturn Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), which held the practice constitutional in 1977. The Supreme Court issued a tied 4-4 opinion, which affirms the lower court's decision and does not overrule Abood. Therefore, the existing laws remain in place regarding compulsory dues on public employees as a condition of employment.

Over fifty cities and counties from across the country submitted a joint amicus brief in support of the respondents to maintain the current agency shop practices. Two reasons for the interest of cities and counties was concern that overruling Abood would threaten existing collective bargaining agreements and result in a loss of cost savings from the cooperative labor-management arrangements. While this ruling maintained the existing law, it was a tied decision and petitioners have recently filed a petition for a rehearing when a new justice is confirmed.

Population Distribution
In Evenwel v. Abbott, 2016 WL 1278477 (U.S. Apr. 4, 2016), Texas voters filed suit against Texas and the Secretary of State alleging that their votes were diluted in relation to other voters because Texas, like all other states, determines apportionment on total population and not eligible voters or registered voters. The appellants argued that the dilution of their votes violated the one-person, one-vote principle of the Equal Protection Clause. By a vote of 8-0, the Supreme Court affirmed the current population-based principle for three reasons: 1) Constitutional history demonstrated that Congress had rejected a voter population process and relied on the total population as a better means of representation; 2) There is substantial precedent for determining districts by equal population; and 3) The long-standing practice used in all states has served the nation well since using total population upholds equality to all, including nonvoters who receive services. Here in Arizona, the state constitution directs the redistricting commission to begin with an equal population in a gridlike pattern across Arizona and Evenwel's decision means that Arizona will likely continue to rely on total population when beginning the process to apportion state and local legislative districts.

Asset Forfeiture
In Luis v. United States, 2016 WL 1228690 (U.S. Mar. 30, 2016), the Supreme Court, in a 6-2 decision, held that a criminal defendant may use untainted assets to hire an attorney under the right to counsel under the U.S. Constitution. The defendant has been charged with fraudulently obtaining nearly $45 million in Medicare funds and claimed that she wanted to use the untainted portion of the $2 million in assets to hire an attorney. Federal law allowed the substitute assets to be frozen in cases relating to health care fraud but the Court ruled in favor of the defendant stating that the Sixth Amendment grants a person the right to counsel. The Court held that the right is fundamental and cannot be undermined by taking away the defendant's ability to pay for counsel, especially when there is a distinction between tainted and untainted assets.

The State and Local Legal Center ("Center") filed an amicus brief in opposition to the petitioner on behalf of several entities, including the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association. The Center argued that many local governments allow forfeiture of substitute assets to deter criminals from benefitting from their crimes and helping victims recover restitution from these assets.

Justices Kennedy and Alito dissented and noted that this decision has created an obstacle for governments when a defendant has put stolen money beyond a government's reach.

Brief of Amici Curiae, National Association of State Legislatures, Council of State Governments, National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association, In Support of Respondent:

Qualified Immunity
In Mullenix v. Luna, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015), the Court in an 8-1 decision reversed the Fifth Circuit's denial of qualified immunity to Officer Mullenix who shot and killed an intoxicated driver. The driver had led officers on a 25-mile high speed chase and had twice called dispatch to warn that he had a gun and would shoot at any officers. While other officers were preparing tire spikes, Officer Mullenix was aware that the driver was quickly approaching the officers and he shot at the vehicle intending to disable it, but the car flipped and the occupant was pronounced dead from four shots to his upper body. The Court rejected the Fifth Circuit's determination that second-guessed the officer's actions since qualified immunity applies if the officer's actions were reasonable. Therefore, the Court held that Officer Mullenix had acted reasonably under these dangerous circumstances and was entitled to qualified immunity to shield him from civil liability. The Court's opinion confirms previous decisions that recognize the difficulties faced by city and town law enforcement officers who must make quick decisions in perilous situations.

In an 6-2 decision in FERC v. Electric Power Supply Association, 136 S. Ct. 760, 193 L. Ed. 2d 661 (2016), as revised (Jan. 28, 2016), the Supreme Court held that the Federal Energy Regulatory Commission (FERC) has the authority under the Federal Power Act to regulate wholesale demand response, which is the practice of paying consumers who reduce their power usage at certain times to protect the grid from an overload. The Court found that the Act gives FERC authority to regulate any practice that might affect rates and FERC's decision was not arbitrary and capricious because the agency submitted detailed explanations and lengthy responses to questions when it determines that demand response bidders provide the same value as electricity producers and should receive the same compensation.

A group of entities including a public school, state university, water utility, solar power provider, and industrial businesses filed an amicus brief in support of FERC to highlight the benefits of demand response. This analysis may be helpful to local governments that seek to lower energy prices generated by demand response.

Brief for Electricity Consumers and Demand Response Providers as Amici Curiae in Support of Petitioners

Preview of Cases
The Court has many other cases to decide this term including the following:
  • U.S. v. Texas: Whether the Deferred Action for Parents of Americans violates federal law or is unconstitutional.
  • Fisher v. University of Texas at Austin: Whether UT-Austin's race-conscious admissions policy is unconstitutional.
  • Heffernan v. City of Paterson, New Jersey: Whether the City violated a police officer's First Amendment right to free association rights when the officer picked up a campaign sign for the police chief's opponent for his mother.
  • Whole Women's Health v. Cole: Whether Texas' admitting privileges and ambulatory center requirements create an undue burden on women seeking abortions.
Following the end of the term in June, another update will be provided on U.S. Supreme Court decisions. For more information about the Court view the website and blog to read full opinions, case information, and analysis.

Visit the State and Local Legal Center ( for a link to their amicus briefs and information about the cases highlighted in this article.

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