Speech and Sewers: The Supreme Court has been Busy Ruling in Favor of State Government

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.     

In Armour v. Indianapolis  the Court held 6-3 that Indianapolis didn’t violate the Equal Protection Clause of the U.S. Constitution when it forgave the debt of those who choose to pay for sewer upgrades in installments but didn’t issue refunds to those who paid for sewer upgrades in a lump sum.   The Court concluded Indianapolis had a rational basis for this decision, which was made after Indianapolis changed its method of funding sewer upgrades--namely avoiding the administrative inconvenience of having to continue to collect monthly payments as low as $25/month for as long as 30 years for a discontinued program.  Justice Breyer cited the SLLC’s brief which described exactly what Indianapolis would have to do to keep collecting installment payments and what it might cost. 

Why is this case so great for state government?  Lyle Denniston of SCOTUS blog says it best describing the opinion as “full of admonitions against courts’ second-guessing of state and local tax policy.”

In a unanimous decision in Reichle v. Howards, the Court granted qualified immunity to two Secret Service agents, who allegedly arrested Mr. Howards for speech to VP Dick Cheney, where the agents had probable cause to arrest Mr. Howards for committing a federal crime (lying to them).

 I am sure you can only imagine what happened in this case… 

Mr. Howards told the Vice President his “policies in Iraq are disgusting” and then touched him.  When a Secret Service agent questioned Mr. Howards about assaulting or touching the Vice President he denied it and was arrested.  Making a materially false statement to a federal official violates a federal statute.

Mr. Howards sued the agents claiming they violating his First Amendment rights by arresting him in retaliation for his speech.  Government official are immune from lawsuits claiming they have violated someone’s constitutional or statutory rights if the law violated wasn’t “clearly established.”

According to the Court it was not “clearly established” at the time of the arrest that an arrest supported by probable cause could violate the First Amendment.  Justice Thomas, writing for the Court, noted that the Supreme Court has never held that a person has a First Amendment right to be free from a retaliatory arrest supported by probable cause. 

This case is a win so why is it also a disappointment?  The Court accepted, but declined to decide, the underlying legal issue in this case:  whether probable cause bars First Amendment retaliatory arrest claims.  Why?  I think Mike Dorf of Dorf on Law has it right.  The decision about qualified immunity was unanimous so they decided to leave well enough alone. 

To learn more about these cases and the other big cases from the term, sign up here for the SLLC’s FREE Supreme Court webinar on July 19 which will cover these cases and all the other prominent case from the Supreme Court’s October 2011 term affecting state and local government.  Speakers are Paul Clement who argued Armour v. Indianapolis (and the Affordable Care Act cases and the Arizona immigration case…) and Patricia Millett who has currently argued more cases before the Supreme Court than any other woman.