Legal Corner: U.S. Supreme Court Update

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

In April, the Legal Corner provided a midterm update on cases that had been decided by the U.S. Supreme Court. The Court concluded its term in June and several additional cases were decided that impact local governments relating to the conduct of elected officials, the political activity of employees, and blood testing for suspected DUI offenders. In addition, the U.S. Supreme Court decided several high profile cases this term affecting immigration, education, and abortion.

Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, was nominated by President Obama in March to serve on the Supreme Court following the death of Justice Antonin Scalia. He has not been confirmed so the following cases were decided by the eight justices. The State and Local Legal Center ("SLLC") summarized these cases, which have been adapted to specifically address items of interest for Arizona cities and towns. Additionally, Aaron Taylor, League Summer Extern from Sandra Day O'Connor College of Law contributed to the summaries of McDonnell v. United States and Birchfield v. North Dakota.

Elected Officials
In McDonnell v. United States, 136 S. Ct. 2355 (2016), the Supreme Court unanimously reversed former Virginia Governor Robert McDonnell's federal bribery conviction. During his term of office, Governor McDonnell accepted more than $175,000 in loans, gifts and other benefits from a businessman who was attempting to gain university testing for his dietary supplement. Governor McDonnell was prosecuted for at least five "official acts" of bribery, including arranging meetings and hosting and attending events to connect Virginia University researchers with the businessman in order to study his dietary supplement. The case hinged on the meaning of "official acts" and when evaluating the federal statute, court precedent, and the broad and vague constitutional concerns raised by the Governor, the U.S. Supreme Court held that "setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an 'official act.' " 136 S. Ct. 2355, 2368 (2016). The Court remanded the case back to the lower court to determine whether charges will be dismissed or a new trial will be ordered.

In Arizona, it is a crime if, with corrupt intent, a public servant "solicits, accepts or agrees to accept any benefit upon an agreement or understanding that his vote, opinion, judgment, exercise of discretion or other action as a public servant … may thereby be influenced." See A.R.S. § 13-2602 (A)(2). The statute provides no definition for "action," being guided only by the Arizona Supreme Court's ruling in State v. Hendricks that "The act intended to be influenced must be connected with one's official or public duty." See State v. Hendricks, 66 Ariz. 235, 242, 186 P.2d 943, 947 (1947)." Bribery is a class 4 felony.
Click here to read the opinion

Employee Political Activity
In Heffernan v. City of Paterson, New Jersey, 136 S. Ct. 1412 (2016), the Court examined whether the City violated a police officer's First Amendment right to free association when the officer was demoted from detective to patrol officer after he picked up a campaign sign supporting the police chief's opponent. The officer was not involved in the campaign but picked up the sign for his bedridden mother. Following his demotion he filed a complaint and the District Court found that the officer had not been deprived of any right because he had not actually engaged in any First Amendment conduct. The Third Circuit affirmed but the Supreme Court reversed and ruled 6-2 that a public employer violates the First Amendment "when an employer demotes an employee out of a desire to prevent the employee from engaging in political activity…even if, as here, the employer makes a factual mistake about the employee's behavior." 136 S. Ct. 1412, 1418 (2016).

The SLLC filed an amicus brief arguing that a government employer should be able to limit political activity where the activity may seem to be endorsing a candidate or violating civil service rules, especially involving those employees who have access to confidential and sensitive information. While the Court found that the constitutional harm was the same regardless of whether the employer's belief was factually inaccurate, the SLLC was pleased that the Court remanded the case to the lower court to determine whether the officer was dismissed pursuant to a neutral policy that is constitutional.
Click here to read the opinion

DUI - Blood Tests
Some states including Arizona have enacted "implied-consent" laws to facilitate testing of blood alcohol concentration ("BAC"). The doctrine of implied-consent states that by operating a motor vehicle a driver consents to BAC testing at the request of a law enforcement officer. Historically, a refusal to submit to testing would incur a civil penalty such as the suspension or revocation of a driver's license. However, many states throughout the country have criminalized an individual's refusal of a blood test during an investigation for driving under the influence.

In Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the Supreme Court held 5-3 that states cannot criminalize the refusal to take a blood test. In order to collect a blood sample, the police officer must obtain a warrant. The Court distinguished a breath test, which is a "negligible" intrusion compared to a blood test, which requires "piercing of the skin…to extract a part of the subject's body." 136 S. Ct. 2160, 2164 (2016). The Court found that implied-consent laws that impose civil penalties are permitted but it is a violation of the Fourth Amendment to impose criminal penalties on the refusal to submit to a blood test.

Arizona has an implied-consent law but does not criminalize refusal to submit to BAC testing. See A.R.S. § 28-1321(A). Rather, upon refusal "the violator shall be informed that the violator's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal within a period of eighty-four months." See A.R.S. § 28-1321(B). Arizona law does allow an officer to choose between administering a breath test or a blood test so the decision in Birchfield would suggest that the officer may not administer the blood test to an individual who refuses unless a warrant is obtained. See A.R.S. § 28-1321(A).
Click here to read the opinion

In April 2015, the District Court of Texas, Brownsville Division, granted a preliminary injunction that stayed the Deferred Action for Parents of Americans ("DAPA") program. The program, which was created by the President's executive order, allowed undocumented immigrants to lawfully stay and work in the United States if they satisfied certain requirements including residency and having a child who is U.S. citizen or permanent resident. Twenty-six states, including Arizona, challenged the executive order and sought a preliminary injunction to halt implementation of the DAPA program alleging violations of the Administrative Procedure Act. The District Court granted the stay and the Fifth Circuit affirmed. Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

The U.S. government appealed to the U.S. Supreme Court to reverse the decision in order to implement the DAPA program. However, in U.S. v. Texas, 136 S. Ct. 2271 (2016), the U.S. Supreme Court was divided on a 4-4 split. The tie resulted in the Court affirming the Fifth Circuit's judgment and the stay remains in effect. Therefore, the DAPA program will not be implemented.
Click here to read the opinion

Click here for the Fifth Circuit Decision

In Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016), the Court ruled 4-3 that the University of Texas-Austin's race-conscious admissions policy is constitutional. The university admissions policy automatically admits the top ten percent of Texas high school graduates, which results in seventy-five percent of the class enrollment. The remaining twenty-five percent of students are selected based on combination of grades, test scores and a personal achievement index that includes race as a component. The plaintiff, Abigail Fisher, was not in the top ten percent of her class and was not admitted under the holistic review process and alleged that the university's admissions program violated the Equal Protection Clause of the U.S. Constitution. The university provided ample evidence demonstrating its methodology, statistics and demographics collected over a decade to justify the policy. The Court held that the university met its burden of showing that the admissions policy was narrowly tailored because the impact of racial consideration was minor and "played a role in only a small portion of admissions decisions... " 136 S. Ct. 2198, 2212 (2016).
Click here to read the opinion

In Whole Women's Health v. Cole, 136 S. Ct. 2292 (2016), the Court held 5-3 that Texas' admitting privileges and ambulatory center requirements create an undue burden on women seeking abortions. The case was brought by abortion providers who claimed that the Texas law violated the Fourteenth Amendment. The Court considered the burdens the law imposes on abortion access together with the benefits those laws confer and found that the admitting-privileges requirement and the surgical-center requirement does not provide "medical benefits sufficient to justify the burdens upon access that each imposes..." and held the requirements constitute an "undue burden" on plaintiff's constitutional rights. 136 S. Ct. 2292, 2299 (2016).

Preview of Cases
Next term the Supreme Court has accepted three cases of interest to local governments:
  • Wells Fargo v. City of Miami: Whether cities have standing to sue banks under the Fair Housing Act over losses cities have experienced caused by discriminatory lending practices. Click here for more information The International Municipal Lawyers Association will be filing an amicus brief on this case.

  • Manuel v. City of Joliet: Whether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment. The courts are divided on this issue and if the court finds constitutional claims for malicious prosecution tort exist, municipalities will face increased lawsuits and claims for damages and attorney's fees despite the availability of state remedies. Click here for more information

  • Murr v. Wisconsin: Whether merger provisions in state law and local ordinances, where nonconforming adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property. Click here for more information

    An amicus brief was filed by the SLLC: Click here
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.

League of Arizona Cities and Towns
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Phone: 602-258-5786
Fax: 602-253-3874

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