Capitol Comments

The last week of June likely will be big even for Americans who generally don’t give a second thought to the U.S.  Supreme Court because the Affordable Care Act cases and the Arizona immigration case will be decided then. 

But for at least state government and the State and Local Legal Center (SLLC) this week has been exciting!  The Supreme Court issued opinions in two cases where the SLLC filed an amicus brief:  Armour v. Indianapolis and Reichle v. Howards.  Remarkably, the SLLC’s brief was cited in Armour v. Indianapolis.     

If a proposed bill granting inheritance rights to children conceived after a parent’s death crosses your desk you might reasonably wonder who exactly this law is intended to benefit and why it is being proposed now.  The simple answer probably is the proposed law is intended to grant children conceived by in vitro fertilization after a parent dies social security benefits.  It is likely being proposed now in response to a recent a U.S. Supreme Court decision Astrue v. Capato.

In this case the Supreme Court unanimously held that children conceived after their parent’s death may only receive Social Security survivor benefits if they qualify to inherit from their deceased parent under state intestacy law.  Karen Capato’s twins were born 18 months after her husband died of cancer with the help of in vitro fertilization using her husband’s frozen sperm.  After her application for Social Security survivor benefits for the twins was denied she sued. 

The Supreme Court heard oral argument in Arizona v. United States where the Court must decide whether federal law preempts four provisions of Arizona’s immigration law. 

Supreme Court reporters and watchers seem to agree the Supreme Court will uphold the portion of Arizona’s law requiring police to check the immigration status of anyone stopped or arrested when there is “reasonable suspicion” the person is here unlawfully.  As Justice Roberts pointed out, if the federal government does not want to pursue deporting someone, it does not have to.   But a number of Justices seemed concerned about the amount of time it would take to confirm someone’s immigration status.

Yesterday the U.S. Supreme Court ruled unanimously in Filarsky v. Delia that law firm attorneys temporarily hired by the government may receive immunity from a lawsuit for violating someone’s constitutional rights. The State and Local Legal Center’s amicus brief in this case argued that local governments frequently hire outside counsel, and outside attorneys are likely to raise their rates or even refuse to represent government altogether if they can never receive qualified immunity. The Supreme Court concluded that outside attorneys may receive qualified immunity because under common law part-time public servants were common and qualified immunity was granted to them. The Court also discussed a number of policy reasons for why qualified immunity should be granted to private individuals performing occasional services for the government.  Some of these reasons include the fact that the “most talented candidates” may decline public assignments if they don’t receive the qualified immunity, the “distractions that accompany even routine lawsuits,” and the difficulty of determining whom is working for the government full-time and permanently.  While this case involved an outside attorney working for a city, qualified immunity applies to state employees as well.  So, an outside attorney hired by a state also will be eligible for qualified immunity under Filarsky.