Tennessee v. Lane (02-1667), Sabri v. United States (03-44), Grupo Dataflux v. Atlas Global Group, L.P. (02-1689), Till v. SCS Credit Corp. (02-1016), Tennessee Student Assistance Corp. v. Hood (02-1606) and Ward v. South Carolina (03-1304)

May 18, 2004 Supreme Court Update

Greetings Court fans!
We're in the homestretch of the Term, and so unsurprisingly, the Court issued five opinions on Monday. They still have 32 opinions outstanding, though, so they have some work to do before the end of June. For those of you keeping score, after Monday, the Chief is in the lead with 7 majority opinions. Kennedy, Thomas and Breyer are tied for last with 4 opinions each.
I'll begin with the big news from Monday, Tennessee v. Lane (02-1667). In this case, the Court (opinion by Stevens for himself, O'Connor, Souter, Ginsburg and Breyer) upheld Title II of the Americans with Disabilities Act against an Eleventh Amendment challenge. Lane, a paraplegic, was forced to crawl up the stairs in a courthouse that lacked an elevator and was then arrested for "failure to appear" when he refused to crawl up the stairs for a subsequent court appearance. (I am not making up these facts.) He filed suit against the State of Tennessee claiming that it violated Title II of the ADA, which prohibits discrimination in public programs, activities and services, by denying him access to its courts. The state defended by arguing that the ADA as applied to it violated the Eleventh Amendment, but the Court rejected that argument. To determine whether Congress has validly abrogated state sovereign immunity, the Court asks two questions: (1) Did Congress unequivocally express its intent to abrogate state sovereign immunity? and (2) Did Congress act pursuant to a valid grant of constitutional authority? Here, the first question is easy; Congress expressly said that it intended to abrogate state immunity. The real debate, as in most of the recent federalism cases, is on the second question. Congress may abrogate a state's sovereign immunity when it does so as an exercise of its power under Section 5 of the Fourteenth Amendment to enforce that amendment. Under Section 5, Congress has broad authority -- it may both remedy and deter violations of rights protected by the Fourteenth Amendment, and so therefore may prohibit conduct that its not itself unconstitutional. So long as there is a "congruence and proportionality" between the injury to be prevented and the means chosen for that end, the legislation is valid. Applying this test in 2001, the Court held that Title I of the ADA (which prohibits discrimination in employment) violated the Eleventh Amendment. Title II is different, however, and so leads to a different result. Title II seeks to prohibit irrational discrimination, but it also seeks to enforce other constitutional guarantees such as the right of access to the courts. To determine whether Title II validly enforces these rights, the Court must evaluate the harm it was designed to address, and on this front, there is no doubt that Title II was enacted against a backdrop of pervasive unequal treatment in the administration of state services and programs. (Stevens runs through numerous examples of such unequal treatment, documented in the statute books, court opinions, congressional reports, and congressional testimony.) The final question is whether Title II is an appropriate response to this history of unequal treatment. On this again, Stevens had no problem. Title II requires accessibility to public programs, and this is congruent and proportional to the object of enforcing the right of access to the courts. Title II, as applied to cases implicating the fundamental right of access to courts, is therefore a valid exercise of congressional power.
Souter (joined by Ginsburg) joined Stevens' opinion but also concurred separately to note that the judiciary had been an active part in past discrimination against the disabled. Ginsburg (joined by Souter and Breyer) also concurred separately to emphasize that the ADA will sometimes require "reasonable accommodation" of differences to secure access and avoid exclusion of the disabled. Rehnquist (joined by Kennedy and Thomas) dissented. He believes that the Court's decision is incompatible with the earlier decision that held Title I of the ADA inconsistent with the Eleventh Amendment. He contends that Title II "substantively redefines," rather than merely enforces the rights protected by the Fourteenth Amendment, and believes that the evidence of past discrimination relied on by the majority is unconvincing and irrelevant. Scalia dissented separately. Although he had joined opinions applying the "congruence and proportionality" test in the past, he believes that the test produces arbitrary and policy-driven decisions and thus would replace it with a new test that focused on whether the legislation was designed to "enforce" the rights protected by the Fourteenth Amendment. For reasons of stare decisis, he would apply the old test to measures designed to remedy racial discrimination, but would apply his new test to all other enactments. Finally, Thomas wrote a separate dissent to make sure everyone knows he still thinks that Hibbs (the case upholding the Family and Medical Leave Act) was wrongly decided.
Turning next to a criminal case, in Sabri v. United States (03-44), the Court held that the federal bribery statute (18 USC 666(a)(2)) was a valid exercise of congressional power. Section 666 makes it a crime to bribe state, local and tribal officials of an entity that receives at least $10,000 in federal funds. Sabri, a Minnesota real estate developer, paid a Minneapolis city councilman several bribes in connection with his efforts to get a development through city regulatory requirements. After a grand jury indicted him for these bribes, Sabri moved to dismiss the indictment arguing that Section 666 is facially unconstitutional because it does not require proof of a connection between the federal funds and the alleged bribe as an element of the offense. Souter (for everyone but Thomas) took just four pages to reject this argument. According to Souter, the Court won't presume a criminal statute is unconstitutional merely because it lacks an explicit provision for a jurisdictional hook, especially here where there is no reason to believe that the statute would be enforced beyond legitimate interests cognizable under Article I. The Spending Clause gives Congress power to appropriate money to promote the general welfare, and the Necessary and Proper Clause gives Congress the power to make sure that tax dollars so appropriated are actually spent for the general welfare and not for the welfare of crooked officials. Even if every bribe covered by Section 666 is not traceable to funds from a federal project or does not appear as a quid pro quo for some dereliction on a federal project, the statute is still constitutional. Corruption does not have to be that limited to affect the federal interests; money is fungible. It is enough that the statute conditions the offense on a threshold amount of federal dollars defining the federal interest "and on a bribe that goes well beyond liquor and cigars." (At this point, I feel compelled to clarify what seems to be an error in Souter's opinion: While the statute does set a monetary threshold for federal dollars at issue, it does not, contrary to Souter's suggestion, place any threshold requirements on the size of the bribe. So long as the official entity receives at least $10,000 in federal funds per year, and so long as the federal project sought to be influenced involves at least $5,000, a bribe of any size is illegal. (I'd hate for any of my readers to get in trouble based on loose language in a Souter opinion!) Putting aside this technical issue, do you think this statement from Souter was about Connecticut's own Gov. Rowland? For those outside the Nutmeg State, our Governor is in the midst of several different corruption investigations, including an impeachment inquiry, and one of the allegations in the impeachment inquiry is that a state contractor gave him champagne and Cuban cigars. But I digress.)
Legislative history supports Souter's interpretation of the statute as an exercise of the Necessary-and-Proper power; a Senate report confirms that the statute was enacted to fill gaps in existing corruption statutes that had failed to adequately protect federal interests. Having rejected Sabri's main argument, Souter similarly rejected Sabri's two alternative arguments. First, Section 666 is not doomed by the Court's Commerce Clause cases (Lopez and Morrison). Here, Congress was clearly within its rights to protect federal spending from corrupt local administrators. The ability to protect those expenditures is tied to the power to spend in the first place. Second, Section 666 is not an unconstitutional condition on the grant of federal funds as condemned by South Dakota v. Dole. The statute operates directly on corrupt officials and puts no conditions on a state's choice of public policy. Finally, Souter closed the opinion by chastising Sabri for bringing this suit as a facial challenge. (Kennedy and Scalia didn't join this section.) Facial challenges should be rare because statutes are best evaluated in specific factual settings. Kennedy (joined by Scalia) wrote one paragraph to emphasize that Souter's opinion does not undermine the Court's decisions in Morrison and Lopez where the Court considered whether Congress had exceeded its legislative power in enacting the statutes at issue. Thomas concurred in the judgment. He believes that Section 666 is a valid exercise of Congress's Commerce Clause power. He concurs because he thinks the Court's interpretation of the Necessary and Proper clause is questionable.
Since it's late and you're probably tired of reading, I'll breeze through the remaining opinions. In Grupo Dataflux v. Atlas Global Group, L.P. (02-1689), the Court held that a party's postfiling change in citizenship cannot cure a lack of subject-matter jurisdiction that existed at the time of filing in a diversity action. As every first-year law student knows, challenges to federal subject matter jurisdiction may be brought at any time, but federal jurisdiction depends on the state of facts that exist at the time of filing of the suit. In this case, when the case was filed, Grupo was a Mexican corporation and Atlas was a limited partnership with partners in several states and Mexico. (For purposes of diversity jurisdiction, Atlas is considered a citizen of every state where it has a partner.) Because Mexican citizens were on both sides of the "v," there was no complete diversity, but nobody brought this to the court's attention until after a jury had reached a verdict in favor of Atlas. By that time, however, Atlas's Mexican partners had withdrawn from the partnership and so there was complete diversity. The Court (opinion by Scalia for himself, Rehnquist, O'Connor, Kennedy and Thomas) held that Atlas's post-filing change in citizenship did not cure the original lack of diversity. This is different, according to Scalia, from a post-filing change in parties (through dismissal of a non-diverse party, for example), that cures a jurisdictional defect, which is a long-standing exception to the time-of-filing rule. Here, there was no change in the parties of the case, and the Court has never approved a deviation from the time-of-filing rule under these circumstances. Moreover, any exception to this rule based on "finality, efficiency and judicial economy" would be unsound in principle and difficult to police in practice. Ginsburg (joined by Stevens, Souter, and Breyer) dissented. She sees this case as similar to the change-in-party cases and so would consider the change in citizenship in this case a valid cure to the jurisdictional defect. She doesn't think the practical problems would be as great as suggested by Scalia.
In Till v. SCS Credit Corp. (02-1016), a bankruptcy case, the Court adopted a method for discounting deferred payments to creditors in a "cram down." In a cram down, a secured creditor can be forced to accept a promise of future cash payments whose total "value, as of the effective date of the plan . . is not less than the allowed amount of such claim." Because the future payments may be made over time, they must be calibrated to account for the time value of money. Over time, courts had developed four different methods for performing this calibration, and today, the Court announced the preferred choice: When choosing the appropriate interest rate for the promised cash payments, courts should use the "formula" or "prime plus" rate. In other words, the appropriate discount rate is the prime rate plus an appropriate addition (to be chosen by the bankruptcy court) to account for the extra risk of nonpayment. That's about all I'm going to say about this case because I'm guessing that's about all you want to know. Oh, forgot to mention: Stevens announced the opinion of the Court and was joined by Souter, Ginsburg and Breyer. Thomas concurred separately. He reaches the same conclusion, but for different reasons. Scalia (joined by the Chief, O'Connor and Kennedy) dissented. He would adopt the contract rate as the appropriate rate because he thinks that it is more accurate than the "prime plus" rate.
Finally, in Tennessee Student Assistance Corp. v. Hood (02-1606), the Court punted on the question presented. (Is it just me, or have they been doing this a lot lately?) The original question presented was whether the Bankruptcy Clause gives Congress the power to abrogate state sovereign immunity. The Court (opinion by Rehnquist for everyone but Thomas and Scalia) held that they didn't need to answer this question because the bankruptcy court's discharge of a student loan debt doesn't implicate a state's eleventh amendment immunity. A debt's discharge by a bankruptcy court is an in rem proceeding, and the exercise of in rem jurisdiction to discharge a debt doesn't implicate state sovereignty. Even though a student loan is discharged in a proceeding that looks like a regular civil action (service of process, etc.), the court's in rem jurisdiction allows it to adjudicate the discharge without in personam jurisdiction over the state. Thomas dissented (joined by Scalia). He would answer the question they granted cert on by holding (surprise!) that the bankruptcy clause doesn't give Congress power to abrogate sovereign immunity. He would not answer the question posed by the Court because it is difficult, but he hints that he disagrees with the Court's resolution of the issue. Wow. That's about all the excitement I can squeeze from that opinion.
One final note from the order list on Monday (if anyone is still reading . . .): The Court asked the Solicitor General to provide the views of the United States in Ward v. South Carolina (03-1304). In 1989, the Court held that a state statute violated intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The question now is whether South Carolina's response to that decision is unconstitutional because it perpetuated the unequal treatment by simultaneously (1) repealing state retirees' tax exemption and (2) increasing state retirees' benefits.
Whew. That's all for tonight. The Court will announce more decisions next week. Until then, thanks for reading.
From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.