Supreme Court Update: Comptroller v. Wynne (13-485) and San Francisco v. Sheehan (13-1412)

May 22, 2015 Supreme Court Update

Greetings, Court Fans!

We're back with the two remaining decisions from Monday, Comptroller v. Wynne (13-485) and San Francisco v. Sheehan (13-1412), two split decisions featuring strange bedfellows.

The Justices' philosophical differences were aired in Comptroller of the Treasury of Maryland v. Wynne (13-485), where a state's income tax laws bumped up against the so-called dormant Commerce Clause. A 5-4 decision is not an unusual outcome given those differences, but the line-up in this case was anything but usual. Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Breyer and Sotomayor, struck down a feature of Maryland's tax laws as running afoul of the dormant Commerce Clause. Justices Scalia, Thomas, Ginsburg and Kagan would have upheld the law. All of the Justices cited hundreds of years of history as supporting their view.

Like many states, Maryland imposes a personal income tax on the entirety of its residents' income, regardless of where earned. Maryland's tax had two components, one earmarked for the state itself and another—called the "county tax," but collected by the state—earmarked for county governments. Maryland gave its residents a credit for taxes paid to another state where income was earned, but allowed that credit only against the state component of Maryland's tax and not against the county tax. Maryland also collected a tax on non-residents' income earned in Maryland. When Maryland residents Brian and Karen Wynne were denied a credit against their county tax for income taxes paid to other states on their interstate business venture, they sued, and Maryland's highest court sided with the Wynnes, concluding that the denial of the credit violated the dormant Commerce Clause.

Justice Alito, writing for the five-Justice majority, agreed. Quite simply, he said, the denial of the credit is an impermissible state tax on interstate commerce, as the Wynnes pay more taxes by engaging in interstate economic activity than if they had kept all of their business activities within the state of Maryland. It is, in the Court's view, no different than a state imposing a tariff at its border on products made in another state, which was an original motivation for enacting the Commerce Clause. It made no difference that Maryland imposed the same tax rate on its residents' income whether earned in-state or out-of-state. The Court gave short shrift to Maryland's concerns that the state and counties provide services to their residents regardless of where their income is earned, and so tax receipts need not be diminished because another state taxes income at its source. The Court held that Maryland's scheme failed the longstanding "internal consistency" test, because interstate commerce would be disadvantaged as compared to intrastate commerce if every state in the Union applied the same law as Maryland's (i.e., taxing residents' income earned anywhere without a full credit, while also taxing income earned in the state by non-residents).

Justices Scalia and Thomas, in separate dissents (and largely joining each other) took this opportunity to trash the whole notion of a dormant Commerce Clause. The Constitution has a Commerce Clause giving Congress the authority to regulate interstate commerce, but contains no limits on the states. Both Justices seek to roll back the clock on hundreds of years of precedent prohibiting the states from burdening interstate commerce. As Justice Scalia put it, the dormant or "negative" Commerce Clause might have "deep roots," but so do "weeds. He saw decades of judicial efforts to regulate what states may or may not do as creating an incoherent body of judge-made law. Congress can enact limits as part of its power to regulate commerce, but the Constitution does not impose limits. Justice Thomas agreed and added a historical perspective to support an original understanding by the Founding Fathers that states may tax their residents' income without credits for another state's tax on the same income. Justice Alito sarcastically rebutted the factual underpinnings of this historical excursion, remarking: "We are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach."

Justice Ginsburg, joined by Justices Scalia and Kagan, adopted a different tone in her dissent, accepting the Court's long-held jurisprudence, but construing it to allow a state to even-handedly tax residents' incomes wherever earned, undiminished by how another state might choose to tax some of that same income. Two lawful state taxing schemes do not make a wrong under the Constitution. In the dissenters' view, states can tax to support the services they provide, and a person residing in one state and earning income in another can be called on to support both governments even if it increases the tax burden. A state can choose to alleviate its taxpayers' burden with a credit, but that is a matter of legislative policy and not constitutional doctrine.

Justice Alito took the pen again in San Francisco v. Sheehan (13-1412) and again faced off with Scalia and Kagan in dissent—albeit over matters of Supreme Court practice, not constitutional law. When the Court granted cert in Sheehan, it seemed poise to settle a circuit split over the interesting question of whether Title II of the Americans with Disabilities Act applies to the manner in which police arrest an individual with a mental illness. But, as a result of some clever-disguised-as-inept lawyering on the part of San Francisco, the Court ended up DIG'ing that question and issuing an opinion holding only that it was not clearly established as a matter of Fourth Amendment law that a police officer must accommodate a potentially violent arrestee's mental illness.

After she began acting erratically and threatening her social worker, city and county police officers were dispatched to the group home where Teresa Sheehan resided. They knocked on the door to her private room and then let themselves in using a master key, at which point Sheehan began threatening to kill them with a kitchen knife. The officers retreated to the hallway and called for backup. But before anyone else arrived, they decided to reenter the room and subdue Sheehan with pepper spray. They made this decision without stopping to consider whether Sheehan's mental disability could be reasonably accommodated under the ADA. Back inside, the officers pepper-sprayed Sheehan, but she continued to advance toward them in a threatening manner until one of the officers shot her three times, almost killing her. Sheehan sued, alleging both that the officers had violated the Fourth Amendment and that they'd violated the ADA by failing to accommodate her mental illness by, for example, engaging in non-threatening communications rather than barging in with pepper spray blazing. The District Court granted summary judgment to San Francisco and the officers on grounds of qualified immunity. But the Ninth Circuit reversed, holding that the ADA's accommodation requirement applied to the arrest—and anything else a public entity does—and that, while exigent circumstances may inform what sort of accommodation is "reasonable," this was a jury question that should not have been disposed of on summary judgment. With respect to the Fourth Amendment and qualified immunity, the Ninth Circuit held that it was clearly established that an officer cannot forcibly enter the home of an armed, mentally ill subject who had been acting irrationally when there was no objective need for immediate entry.

The Supreme Court granted cert, primarily to address the question whether Title II of the ADA applies at all to the manner in which police effectuate an arrest. But, subsequent to granting cert on that question (along with the qualified-immunity question), San Francisco changed course, essentially conceding that Title II categorically applies to arrests, but arguing that a person who poses a direct threat or significant risk to the safety of others is herself not qualified for accommodations under the ADA. Because San Francisco now effectively agreed with Sheehan on the issue the Court had intended to review—i.e. whether Title II applies to arrests at all—the Court dismissed the question as improvidently granted. All nine justices agreed on that point, some with more annoyance than others. But just five (with Breyer recused, since his brother was the district judge) joined the remainder of Justice Alito's opinion addressing the qualified-immunity question. Here again, because of "inadequate" briefing, the majority concluded it would be imprudent to decide whether the Fourth Amendment's prohibition of unreasonable seizures permits a police officer to make an arrest without considering whether the subject's mental illness could be accommodated. Instead, as this Court is wont to do, the majority merely held that the officers' failure to accommodate Sheehan's mental illness did not violate any clearly established law as announced by the Supreme Court. Wagging a familiar finger at the Ninth Circuit, the majority reiterated that "clearly established law" may not be defined at such a high level of generality that any Fourth Amendment violation would violate it. "Qualified immunity is no immunity at all if ‘clearly established' law can simply be defined as the right to be free from unreasonable searches and seizures." The Ninth Circuit also inappropriately cited its own circuit precedent in defining "clearly established law." The majority was thus content to simply reverse the Ninth Circuit's holding with respect to qualified immunity take a pass on the weighty questions the case posed.

Justice Scalia, joined by Justice Kagan, concurred in the decision to dismiss the first question (on the ADA's applicability) but would also have dismissed the second question (on qualified immunity) as improvidently granted. In Scalia's eyes, San Francisco engaged in a classic "bait and switch": It petitioned for certiorari on a question over which there has been disagreement among the circuits, but then buried that question so that it could get the Court to engage in some basic Ninth Circuit error correction on the otherwise uncertworthy question of qualified immunity. While he acknowledged that the Ninth Circuit was probably wrong in its qualified-immunity analysis, he insisted that that was no reason to engage it. "In fact, there is in this case an even greater reason to decline [review]: to avoid being snookered, and to deter future snookering."

That brings us up to speed on decisions. We'll be back with next week's offerings. Happy Memorial Day, all!