Court grants nine cases
UPDATE: The Supreme Court, in a later order, set up expedited briefing schedules in 05-1272, Rockwell International v. U.S., and 05-1629, Gonzales v. Duenas-Alvarez (05-1629). This means that those cases will be scheduled for oral argument in December; the other new grants will be heard, probably, in January. (For the precise briefing schedule, see page 3 of today’s order here.)
The Supreme Court agreed on Tuesday to decide whether states may bar a labor union from using non-union workers’ dues for political activities if those workers have not explicitly consented. The issue arises in two cases that will be heard together: Davenport v. Washington Education Association (05-1589) and Washington v. Washington Education Association (05-1657). A Washington state law forbade unions to use “agency shop fees paid by non-members to influence elections “unless affirmatively authorized by the individual.” The state Supreme Court struck down the law as a violation of union’s First Amendment rights in a case filed by a teachers union.The outcome may affect the laws of some 14 states that would be vulnerable under the state Supreme Court’s rationale.
[UPDATE: The complete orders list can now be found here].
The Court, setting the stage to open its new Term next Monday, added a total of nine new cases to its docket for decision in coming months. Those cases were selected from the 1,900 that had stacked up since the Court’s last Conference in June. Indications are that, later today, some of these will be put on expedited briefing schedules, for argument in December; the Court has four slots still open in its December calendar.
In an important business case, the Court agreed to decide what proof is required to show that a violation of the federal truth-in-lending law was willful. Under the Fair Credit Reporting Act, a finding of a willful violation entitles a consumer either to actual damages or statutory damages of $100 to $1,000 per violation, plus punitive damages. A mere negligent violation, by contrast, results only in actual damages. The issue before the Court is whether a violation is willful if it resulted from reckless disregard of consumer rights under the Act, or whether there must be proof the credit entity actually knew it was acting illegally. The Court consolidated two cases for review on the issue: Safeco Insurance v. Burr (06-84) and Geico General Insurance v. Edo (06-100).
Among the cases granted was one filed by the federal government, testing whether an alien living in the U.S. can be deported after being found guilty of a crime that could include a verdict of aiding and abetting (Gonzales v. Duenas-Alvarez, 05-1629).
In a death penalty case with significant potential for affecting the relationship between criminal defendants and their defense lawyers, the Court will hear an Arizona appeal testing whether defense counsel has a duty to develop and offer evidence favorable to the client, when the client actively opposes any such maneuver. (Schriro v. Landrigan, 05-1575)
The Court also took on an important case on the right of individuals to recover, on behalf of the federal government, federal funds that were misspent by a private firm or contractor of public employee — the “qui tam” provision of the False Claims Act. The order granted review to spell out the meaning of the phrase “original source” in the Act. A person bringing a qui tam claim must be the original source of the information about the misspent funds. In granting review of the case, however, the Supreme Court chose not to address a claim that the qui tam provision itself is unconstitutional. The case is Rockwell International v. U.S. ex rel. Stone (05-1272) Justice Stephen G. Breyer took no part in the order.
Stepping into a governmental spat on the island of Guam, the Court agreed to decide a dispute between the territory’s governor and its attorney general over staying within a borrowing limit. The Court, however, added a procedural issue that may prevent it from reaching the substance of the officials’ dispute. (Moylan v. Camacho, 06-116).
The Court granted review of the federal Education Secretary’s authority to write a formula on subsidizing local school districts that serve a nearby military base on Indian reservation. The case tests whether the Secretary is bound by a formula enacted by Congress (Zuni Public School District v. U.S. Department of Education, 05-1508).
In an environmental dispute, the Court said it would return to the question of local governments’ authority to control the disposal of solid wastes. The case tests whether it violates the Commerce Clause for a local “flow-control” ordinance to require delivery of all solid wastes to a publicly owned local facility. (United Haulers Associationi v. Oneida-Herkimer Solid Waste Management Authority, 05-1345).
In a jurisdictional case, the Court will review whether a U.S. District Court must first find that it has jurisdiction over a lawsuit, before it may dismiss a lawsuit because it was filed in an inconvenient forum. (Sinochem International v. Malaysia International Shipping Corp., 06-102).
Of the two decisions under review involving union dues and the Washington Education Assocation, No. 05-1657 (Washington v. Washington Education Association) is much the odder.
It doesn’t just conflict with federal circuit court decisions and prior reasoning from the Supreme Court. It actually turns the First Amendment on its head.
In it, the Washington Supreme Court turned the First Amendment inside out by holding that the First Amendment creates not just a floor, but a ceiling, on the First Amendment rights of public employees over the use of their compelled union dues.
In essence, the state supreme court believed that everything not mandatory under U.S. Supreme Court precedent must be forbidden.
That is at odds with the fact that states are free to give individual citizens broader rights than the minimum conferred by the federal constitution.
The U.S. Supreme Court has ruled that the First Amendment gives employees who are compelled to pay dues to unions certain minimum protections, like not having to fund the unions’ political activities unrelated to collective bargaining on their behalf.
The U.S. Supreme Court has never said that states cannot give those employees additional safeguards, or that any additional safeguards would violate the union’s own rights.
Nor has it said that public employee unions are entitled to have the state give them the maximum amount of union dues they are not forbidden to collect under U.S. Supreme Court precedent.
Nor has it said that a public employee union has First Amendment rights to compel employees to pay it dues as long as those dues do not violate the employees’ own First Amendment rights.
The fact that the First Amendment itself does not give public employees very broad rights against the union they are forced to support does not mean that state law cannot give the employees additional protections.
Contrary to the Washington Supreme Court’s decision, it is well established that a state law can give citizens broader free speech rights than federal law gives them.
That is true even when the state-created free speech rights are at the expense of the interests of a competing private institution, as the Supreme Court’s decision in the PruneYard case demonstrates.
Moreover, in the Washington State case, the state law is not even being applied to a purely private institution, but rather to public employee unions who are already using state machinery to compel employees to pay them dues.
States frequently give individual citizens broader free-speech protections than they are accorded under the federal constitution.
For example, under the Washington State Constitution, and the Washington Supreme Court’s own precedents, a higher level of scrutiny applies to time/place/manner restrictions on speech than under the federal First Amendment.
The First Amendment thus creates a floor beneath which citizens’ free speech rights cannot be reduced, not a ceiling beyond which state law cannot further protect them.
Washington State properly relied on that principle by enacting a law giving dissenting employees more protection against political use of their dues by public employee unions than they enjoy under the First Amendment.
Many states give their citizens added free speech protection above and beyond that conferred by the First Amendment.
Under California law, students have free speech rights in what they say in a school-sponsored newspaper, although the federal First Amendment confers no such rights, leaving school officials free to dictate the content of such newspapers, according to the U.S. Supreme Court’s Hazelwood decision.
Similarly, under Massachusetts law, and the Massachusetts Supreme Court’s Pyle v. South Hadley School Committee decision, students have the right to use plainly offensive speech to express a political point of view, although the Supreme Court’s Bethel decision emphasizes that the federal First Amendment does not confer such rights.
And in the PruneYard case, the U.S. Supreme Court held that California could confer a state-created free-speech right on citizens to engage in speech in even a privately-owned shopping center.
To me, that’s a much harder case than the Washington v. Washington Education Association case, which involves a public employee union.
But the Supreme Court upheld the state law nonetheless, even though it trenched much more on private property rights than does the Washington law under review in Washington v. Washington Education Association.
Comment by Hans Bader — September 26, 2006 @ 4:54 pm
Anyone notice the unusually sharp demarcations of federal power and economic rights that can be drawn in these cases? This reflects better than usual case selection.
Comment by Commentator — September 26, 2006 @ 6:28 pm