Supreme Court Update: Nevada Commission on Ethics v. Carrigan (10-568) and Camreta v. Greene (09-1454)

June 21, 2011 Supreme Court Update

Greetings, Court fans!

The Court released four decisions today, including two big ones: Wal-Mart Stores, Inc. v. Dukes (10-277), overturning the Ninth Circuit's decision certifying a class of millions of plaintiffs in a gender discrimination suit against the big box store everyone loves to hate (but nevertheless buys from weekly); and American Electric Power Co., Inc. v. Connecticut (10-174), holding that the Clean Air Act and the EPA's efforts under that Act to regulate carbon emissions displaced any federal common law action for nuisance based on the release of carbon. But that enticement is all you're going to get on today's decisions. Instead, we're back to bring you two tales: one on the interplay between ethics, voting and the First Amendment and the second on qualified immunity and the right of a prevailing official to obtain review of constitutional questions.

In Nevada Commission on Ethics v. Carrigan (10-568), Justice Scalia wrote for a unanimous Court in holding that a state conflict of interest statute did not violate a city councilor's First Amendment rights. The Nevada Ethics Commission had censured the city councilor for voting on a development project in which his friend and campaign manager had an interest. The Nevada Supreme Court concluded that the act of voting was protected by the First Amendment, applied strict scrutiny, and held that the state ethics provision was unconstitutionally overbroad.

The Court noted that conflict of interest provisions dated back to the founding of the country, including a recusal rule in the House of Representatives that was adopted during the first week the chamber had a quorum, even before the House voted to submit the First Amendment for ratification. As such, conflict rules at the federal and state level are entitled to deference, with heightened scrutiny applied only if the rules are not content-neutral. Writing very broadly, Justice Scalia concluded that a legislator's vote is not entitled to First amendment protection at all, because it is not a personal right but rather an exercise of representative political power from the people. He rejected Justice Alito's view that a vote can have deep symbolic meaning that would be constitutionally protected, stating that "the act of voting symbolizes nothing" and that the First Amendment does not "confer[] a right to use governmental mechanics to convey a message." On that basis, the Court reversed and remanded, without addressing two other arguments – whether the Nevada conflicts provision was unconstitutionally vague and whether it burdened the right of association of legislators and their supporters – which were not ruled on below and therefore were not before the Court.

Justice Kennedy's concurrence focused on the latter argument. He agreed that the act of voting itself was not protected speech. But he wrote separately to express his concern that a state law that prohibited a legislator from voting on matters advanced by his or her political supporters implicated "the logical and inevitable burden on speech and association that preceded the vote." Accordingly, "the possibility that Carrigan was censured because he was thought to be beholden to a person who helped him win an election raises constitutional concerns of the first magnitude." Since that question was not before the Court, Justice Kennedy concurred in the majority opinion. His opinion, though, may lay the groundwork for responding to future challenges to recusal-based campaign finance reform provisions that may be crafted based on the majority opinion.

Justice Alito concurred in the outcome as well, but strongly disagreed with Justice Scalia's position that voting itself can never constitute protected speech. Citing historic examples of votes that required great political courage and were imbued with great symbolic significance, Alito argued that the First Amendment did apply to voting. He concurred on the ground that the Nevada conflicts provision was not an impermissible restriction on that speech, particularly given the historic role of such provisions since the founding era.

Turning from the First Amendment to qualified immunity, in Camreta v. Greene (09-1454), the Court held, 5-2-2, that government officials who are "prevailing parties" on qualified immunity grounds may nevertheless seek the Court's review of an appellate court's constitutional ruling. The instant case arose nearly a decade ago, when Camreta, a child protective services worker, and Alford, a county deputy sheriff, interviewed a girl at her elementary school about allegations that her father had sexually abused her. The girl's mother later sued on the girl's behalf, claiming that the officials violated the girl's Fourth Amendment rights by interviewing her without a warrant or parental consent. The district court found that the officials' actions had violated the Fourth Amendment. But the court also found that the officials were entitled to qualified immunity because no clearly established law had warned them of the illegality of their conduct. The Ninth Circuit affirmed both aspects of the court's decision. While Camreta and Alford were entitled to immunity in this case, the Ninth Circuit warned future officials that they should "cease operating under the assumption that a 'special need' automatically justifies dispensing with traditional Fourth Amendment protections in this context."

Even though judgment had been entered in their favor, Camreta and Alford asked the Court to review the lower courts' Fourth Amendment analysis. The first question before the Court was whether the Court should hear the petition at all. The Respondent, who had cross-appealed the qualified immunity ruling to the Ninth Circuit, but did not cross-petition to the Court, argued that there was no longer an Article III case or controversy. A majority of the Court -- Justice Kagan, joined by the Chief, Scalia, Ginsburg, and Alito -- disagreed. Officials seeking to challenge a decision that their conduct violated the Constitution retain a personal stake in the appeal: that is the only way they can get clearance to engage in the conduct in the future. Persons suing the officials also have a stake: they must preserve the court's ruling to have ongoing protection from the practice.

Having resolved the Article III question, 28 U.S.C. § 1254(1) authorizes the Court to grant cert upon the petition of "any" party. It is true that, as a matter of practice and prudence, the Court generally declines to hear cases at the request of a prevailing party. But the Court will make exceptions given important policy reasons, and such reasons are presented in qualified immunity cases. Constitutional rulings in these cases are "self-consciously designed" to have a "significant future effect" on the conduct of public officials and government units "by establishing controlling law and preventing invocations of immunity in later cases." Lower courts are permitted to reach (and, for a time, were required to reach) constitutional questions even when they find immunity, because important questions about official conduct may otherwise remain in permanent limbo (i.e., an official gets immunity because there is no clearly established law, the court doesn't opine on the conduct itself, the next official gets immunity because there is no clearly established law, ad infinitum). Although the Court would advise lower courts to "think hard, and then think hard again, before turning small cases into large ones," it is sometimes beneficial for appellate courts to reach beyond a qualified immunity defense, to clarify constitutional rights. The Court may choose to review the appellate courts' constitutional rulings, for the same reason.

But the Court left open two important questions. First, the Court emphasized that its decision was limited to its own authority. It did not decide whether appellate courts may entertain appeals from prevailing parties, and suggested in a footnote that the the policy considerations it had outlined might not apply with the same force, because "district court decisions -- unlike those from the courts of appeals -- do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity." Second, the Court did not reach the Fourth Amendment question in this case. The Court determined that the case was moot because the girl in question had moved out of state and was months away from her 18th birthday, i.e., she no longer faced any chance of being seized in a school in the Ninth Circuit's jurisdiction. Because the "happenstance" of the girl's moving across country and becoming an adult deprived Camreta of his appeal rights, the Court applied the equitable remedy of vacatur, and vacated that part of the Ninth Circuit's opinion which reached the constitutional question.

Justice Scalia penned a brief concurrence to signal that, while the parties in this case did not ask the Court to end the "extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity," he would be willing to consider it in an appropriate case. Justice Sotomayor, joined by Breyer, concurred in the judgment only. They agreed with the Court's conclusion that the case was moot, and would have started and ended there. The Court should not have reached the "difficult" question of whether a prevailing official can obtain review of a constitutional ruling when there was clearly no longer a genuine case or controversy between the parties before the Court.

Justice Kennedy, joined by Thomas, dissented. The Court's recent qualified immunity cases have produced decisions that are "in tension with conventional principles of case-or-controversy adjudication." They essentially allow unnecessary merits decisions -- dicta -- in qualified immunity cases to have the effect of declaratory judgments or injunctions. To review what could be erroneous decisions, the Court now had to make an exception to the prevailing party rule, but that created additional problems. It's not clear, for example, why an official would have Article III standing to appeal a constitutional ruling, where he had been constrained no more and no less than any other similarly situated officer, and where any asserted injury would be caused by some unidentified future party that might sue if he violated the new rule. In the dissenters' view, it would be preferable to "explore refinements to our qualified immunity jurisprudence" before altering basic principles of jurisdiction.

We'll be back again soon with more decisions and orders. Until then, thanks for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400