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September 25, 2008

Constitution Day: Looking at some little-known Supreme Court cases

On Sept. 17 — Constitution Day — Pitt’s School of Law helped meet the University’s federally mandated obligation to hold events that further understanding of the U.S. Constitution — with a twist.

“You might expect that we’d be talking about the high-profile cases such as those involving the Second Amendment right to bear arms or the death penalty,” Dean Mary Crossley said at a presentation on “Important (but Little-Noticed) Supreme Court Constitutional Cases.”

“Instead, three distinguished Pitt law faculty members will discuss recent and pending cases in the U.S. Supreme Court that raise intriguing and significant issues in constitutional law, the importance of which may be underappreciated,” Crossley said.

The three speakers were:

• Deborah L. Brake, who previewed Fitzgerald v. Barnstable School Committee, which the Supreme Court will hear this term. Fitzgerald presents the question of whether Title IX precludes constitutional claims under the equal protection clause for sex discrimination in education.

An expert on Title IX and gender equality in sports and on gender discrimination generally, Brake recently co-authored a Supreme Court amicus curiae brief in Ledbetter v. Goodyear Tire & Rubber Co., in which the Supreme Court rejected a continuing violation rule for challenging ongoing pay discrimination. (See University Times June 4, 2007.)

• Andrew E. Taslitz, Welsh S. White Distinguished Visiting Professor, who discussed the court’s recent decision in Virginia v. Moore, which held that a state statute prohibiting arrest for a minor traffic offense was irrelevant to whether an arrest in violation of that statute contravened the Fourth Amendment.

Taslitz is visiting from Howard University School of Law. His writings have centered on search and seizure issues, wrongful convictions and statutory interpretation methods, among other concepts.

• Rhonda Wasserman, who discussed a recent court decision, Taylor v. Sturgell, which addresses the “day in court” ideal and the limits that the due process clause imposes on “virtual representation.”

Wasserman has published articles on federal class action practice, state court jurisdiction, federal removal practice and the use of preliminary injunctions for innovative purposes. She also has written a treatise on procedural due process.

Deborah Brake — Is the U.S. Constitution the supreme law of the land? Apparently, not always.

“The Fitzgerald v. Barnstable School Committee case offers more of a warning than a celebration of the Constitution,” Brake said. “It is a little-noted case that nonetheless covers important questions about the relationship between statutory rights and constitutional rights.”

During the 2000-2001 school year, 5-year-old Jacqueline Fitzgerald told her parents she was being sexually molested by an older boy on the school bus. The parents demanded that the school take action.

School officials and local law enforcement investigated, but concluded that there was insufficient evidence to proceed to criminal action. The school decided not to take disciplinary action against the boy. This infuriated Fitzgerald’s parents, so they brought a lawsuit against the school and its principal.

“They asserted two legal claims,” Brake said. “One claim was under Title IX, the statute that prohibits harassment on the basis of sex in the context of any federally funded educational activity. The second claim was under Section 1983.”

Section 1983 of the Civil Rights Act of 1871 allows citizens to sue those who, under pretext of state law, deprive them of their federal constitutional rights.

In an unusual move, the U.S. Court of Appeals for the First Circuit disposed of the case entirely on the basis of the Title IX claim, never examining the merits of the constitutional claim. The court ruled that the harassment did not meet the standard of liability under Title IX, which requires that the school be notified of the harassment, a condition that was met, and that the school was “deliberately indifferent,” a condition the court said was not met.

“The lower court in Fitzgerald ruled that the school didn’t respond as well as it could, but it wasn’t deliberately indifferent,” Brake said, acknowledging that that decision is defensible. “What is particularly troubling, though, is that the court ruled that Title IX precludes the constitutional equal protection clause under the 14th Amendment even if the plaintiffs were able to get a different standard of liability.”

Essentially, the court’s ruling meant that regardless of whether the plaintiff might be able to win on the merits of a constitutional rights claim, that claim is precluded by the statute, she said.

“Are our constitutional rights so fragile that a mere statute can preclude constitutional claims based on the same facts of a case, even when our constitutional rights might be broader and more protective than the statutory rights?” Brake said.

“Something isn’t fitting quite right. I learned early on that the Constitution is the supreme law of the land and trumps any statute. And now the First Circuit Court says differently,” she maintained.

Brake said the disconnect was due to U.S. courts taking “a wrong turn in the law of preclusion. It all started in a pretty innocuous way with a line of Supreme Court cases saying that it’s possible that you could have a comprehensive statute that would create a set of standards that would preclude the use of Section 1983. The wrong turn happened in 1984 in Smith v. Robinson.”

In that case, the court determined that the Education Handicapped Act was so comprehensive that Congress had intended it to preclude any equal protection rights in order to enforce a free and public education.

“I’m more than a little uneasy about allowing so much of our constitutional rights to rest on Congress’s intent to preclude them with a narrower set of statutory rights. At the heart of the Fitzgerald case there are deep questions raised about the relationship between Congress and the Constitution. The tension includes the notion that you need some action by Congress granting you a statutory right for a cause of action in order to assert the Constitution,” Brake said.

“That means it is enormously important for Congress to proactively and affirmatively authorize us to preserve our constitutional rights in order for those rights to be enforceable in the courts,” she said. “What we see in Fitzgerald, in the lower court decision, is that Congress has the federal right to enact statutes with the intent to take away constitutional rights.”

Regardless of the Supreme Court’s upcoming decision in Fitzgerald, the lower court’s ruling signals that constitutional rights depend more on Congress than people realize, she maintained.


Andrew E. Taslitz — The stifling of minority voices

“Since Virginia vs. Moore dealt with a traffic violation, it seems supremely unimportant, and the Supreme Court thought it was so simple there was near unanimity on the court,” Taslitz said. “I would argue that it’s far from simple and that the court did a great disservice by treating it as simple. The decision has important implications for the ability of poor, urban racial minorities to have their voice heard on matters of criminal justice policy.”

Taslitz said he was not arguing the merits of the legal opinion as much as pointing to potential unintended consequences of the decision in the social science arena.

The facts of the case are straightforward, he said. The police in Portsmouth, Va., got a radio call saying that David Lee Moore, an African American, was driving with a suspended license. After the police stopped Moore, they arrested him and conducted, in legal parlance, a “search incident to arrest,” finding $516 in cash and 16 grams of cocaine on his person. They then charged him with possession with intent to distribute — a far more serious offense.

“The problem is, there is a Virginia statute that prohibited arresting anyone for minor offenses, including driving with a suspended license,” Taslitz said. “The case gets to trial and the defendant moves to suppress the evidence, claiming that since state statute prohibited the arrest, there can be no search incident to arrest.”

The court denied the motion to suppress the evidence, ruling that the statute didn’t provide a remedy and that the Virginia Constitution doesn’t generally provide for evidence suppression.

“The defendant then raised a federal argument based on the Fourth Amendment: ‘The right of the people to be free from unreasonable search and seizures shall not be infringed,’” Taslitz said. “To decide what is reasonable, the court has to balance the interest of the state against the invaded interests in privacy of the individual.”

The defendant argued that the statute itself is an admission by the state that privacy matters more than the benefits of arrest for minor offenses, and therefore this search was unreasonable. Further, the defendant argued, under the Fourth Amendment suppression of evidence generally is available as a remedy. But the trial court denied that motion and Moore was convicted for possession.

“The case goes to the Supreme Court and eight justices — eight justices — completely ignored the arguments I just listed and said, ‘This is an easy case, because it’s a state statute. What does it have to do with the federal Constitution? The state statute is irrelevant to reasonableness. Since it’s irrelevant, we can’t consider it in deciding whether the arrest was constitutional and so if the arrest is constitutional, a search incident to arrest is constitutional, case closed,’” Taslitz summarized.

“Justice [Ruth Bader] Ginsburg concurs in the judgment, but she also says, ‘You’re wrong. State statutes can matter. History shows this, logic shows this. But here the Fourth Amendment isn’t violated because the state said, Yes, it’s important not to sanction arrests for minor offenses, but it didn’t provide suppression as a remedy,’” Taslitz said.

“I think exactly the opposite,” he said. “When legislatures create a right without a remedy, that is an act of hypocrisy that has serious and complicated implications. This ruling that the Supreme Court will not step in on federal constitutional grounds and provide a remedy where the state has chosen not to provide a remedy is likely to prevent those people most injured by crime on a daily basis — poor, urban racial minorities — from having a voice in the state legislature as it’s debating crime policies.”

To make that argument, Taslitz said, he had to demonstrate that racial minorities in fact typically don’t get a voice in the state legislature and why, and that the ruling in the Moore case serves to limit opportunities to succeed at the state level.

“There is a significant body of research on this issue, and most recently, there is a study on the events in the state legislature in Pennsylvania comparing that to events in the city councils in Pittsburgh and Philadelphia,” Taslitz said.

At the state level, researchers looked at how many witnesses showed up during hearings concerning crime, who the witnesses were, how many witnesses had lobbying contracts and who the legislators had contact with outside the hearing room.

“The people who had the most contact by far with the legislators were people who were entrenched criminal justice agents, that is, police, prosecutors, members of the bureau of prisons,” Taslitz said. “The second level of those who had voice were single-issue groups, for example, Mothers Against Drunk Driving.”

But what about informal community groups, such as neighborhood associations representing people most victimized by crime?

“Poor racial minorities’ voice at the state level was minuscule. They were rarely represented, rarely any witnesses,” Taslitz said.

So the question becomes: Why are the organized groups like prosecutors getting so much attention when those most affected by crime are not?

“There are two reasons,” Taslitz said. “One is legislators view these people as experts and they defer to them. Second, these witnesses offer clear, simple solutions. And they show up with statistics that support legislation. People from the neighborhood show up and say, ‘My kid’s getting mugged on the way to school.’ They’re voicing problems, not solutions.”

The neighborhood groups also lack the resources to investigate the facts of crime. Moreover, media and politicians engage in fear-mongering about crime, he said. “That creates a political payoff for listening to groups that want the harsh policies, and not so much to people affected by crime. Groups that are heard focus on reactions to events in the news and concrete solutions.”

In contrast, the folks in the neighborhood see crime as interrelated to poor conditions. “They’ll say, ‘If there weren’t such a rotten educational system, my son wouldn’t have to turn to crime.’ ‘If you want to solve crime, you can’t just punish people.’ All that scares the state legislators, because as a whole they represent the white middle class,” Taslitz said.

At the municipal level, he maintained, the situation is the opposite. “The people to whom crime is central, where it’s affecting everything they do in their lives, can stage informal actions, have marches, distribute signs. They can go to their local politicians, talk to them, yell at them. They don’t have to take a bus to Harrisburg. They can walk down to City Hall and be heard,” Taslitz said.

The only times the voices of minorities are heard at the state level are when the interests of minorities and whites intersect, or when large-scale events, like riots or police shootings, gain statewide attention, he said.

That may help explain the conditions that led to the Moore decision, he added. “If too many white people were being arrested for minor traffic violations, they would raise a stink, and the legislators will act. ‘We say arrests for minor offenses are bad. You can’t do them. But we don’t give you any remedy.’

“But then the police — and I’m not saying this is conscious — shift more of their resources to urban minorities,” Taslitz said. “What’s the problem there? Do you think this officer will be sanctioned for making an arrest that leads to a conviction of cocaine possession when there are no damages and there is no suppression? The hypocrisy by the state to pretend to provide a right — a right without a remedy is no right at all — is likely to silence poor, racial minorities in the few instances where they might have a voice at the state level. That’s going to worsen the chance to get better treatment from the police.”


Rhonda Wasserman — Rulings with sharp corners

“The Constitution mediates many fundamental tensions in our system, including between the individual’s right to her own day in court, and the state’s interest in efficiency, finality and consistency in the law,” said Wasserman. “The Supreme Court decided a case in the last term, Taylor v. Sturgell, that addressed this tension.”

To set the stage for her points, Wasserman offered two hypothetical examples.

“No. 1: I’m at a Pirates game, there are fireworks going off and those of us seated in Section 127 are devastated when the fireworks malfunction and land on us, resulting in injury to us,” she said. “I want to sue Zambelli, the manufacturer of the fireworks, but I may hire an inexperienced lawyer who may sue only for negligence, not for breach of warranty, not product liability. She may not retain a pyrotechnics expert who could testify about the defects in the fireworks. She may not hire a medical expert to testify about my damages, and I may lose my case.”

Wasserman in her hypothetical example decides after losing the case that a better lawyer would give her a chance to win on a second try.

“But, in fact, the law will bar me from suing a second time on the same complaint,” she said. “The reason for that law is it would frustrate the defendant’s need for finality and consistency, it would frustrate the judicial system’s need for efficiency and economy and it could yield inconsistency, which could lead to a lack of confidence in the judicial system.”

In hypothetical example No. 2, the same conditions exist: A fireworks accident at the ballpark leads to several injuries.

“Imagine I’m still in the hospital recovering from my injuries. Imagine that someone else — let’s call him Joe — sues Zambelli. And Joe sues on the same theories that I would have and Joe loses,” Wasserman said. “We know that decision precludes Joe from suing a second time. But if Joe and I are strangers, and Joe didn’t purport to represent me or I wasn’t alerted that Joe was suing on behalf of all of us who were injured, if I try to sue Zambelli for my injuries, I’m not precluded because Joe lost. I have my own opportunity to file my own suit.

“This notion is called the ‘day in court’ ideal. That ideal is protected by the federal Constitution, which provides that no state shall deprive any person of property without due process of law,” Wasserman said.

“But it’s not enough to say that the due process clause protects this ideal, because there’s the tension between the day in court ideal and the competing preclusion policies of finality, efficiency and consistency,” she said.

Taylor v. Sturgell is a case where the facts are relatively unimportant. An antique aircraft enthusiast named Greg Herrick wanted to work on an old plane he owned, so he sought the original documents about the plane. He filed a request with the Federal Aviation Administration under the Freedom of Information Act. The agency denied the request, claiming that the documents were protected as trade secrets. Herrick sued the FAA and lost.

“We know the preclusion doctrine likely would say to Herrick he had one chance to sue, and he lost. Herrick knew that, and didn’t try to sue a second time,” Wasserman said. “What happened? His buddy, Brent Taylor, sought the very documents Herrick had sought, also under the Freedom of Information Act. The question in the case was whether Taylor should be precluded by the judgment that had been rendered against Herrick, effectively depriving him of his day in court.”

Prior to the Supreme Court’s ruling, there was a longstanding tradition that those who are a party in a class action suit couldn’t re-file, nor could those who have a pre-existing legal relationship to the party in the action, Wasserman said.

“The lower court in Taylor v. Sturgell didn’t rely on those well-established exceptions,” she said. “Instead it relied on an amorphous document referred to as ‘virtual representation,’ pursuant to which a non-party can be bound by a judgment if the person who was the party was the non-party’s quote unquote ‘virtual representative.’”

Lower courts have varied in their application of the virtual representative doctrine. “Some have rejected it altogether. Some have employed it very expansively,” Wasserman said.

The Supreme Court agreed to hear Taylor because “it decided it was time to chime in on whether the virtual representative doctrine was permissible and if so what the appropriate scope of the doctrine should be,” she said.

There are four points to be made about the court’s unanimous decision, Wasserman said.

First, the Supreme Court emphasized the fundamental nature of each individual’s right to a day in court.

Second, the court declined to adopt the virtual representative view, preferring instead to establish a clear day in court rule with discrete, clear exceptions. “In preferring the clear rule with distinct exceptions — what the court called clear rules with sharp corners — that approach was both easier for courts to apply than an amorphous standard, but also it was a rule that would prevent an end-run around class action rules that are designed to protect individual rights,” Wasserman said.

Third, the court clarified two of the so-called discrete exceptions that had been in place before this court decided the case, she said.

“There had been an exception for people who were quote ‘adequately represented’ in a suit. Did Herrick adequately represent Taylor because their interests were consistent? The court said no. In order for that exception to be in force you needed one of two circumstances to be met,” Wasserman said. “Either there have to be special procedures in place to protect the interests of the non-party, or the party to the original suit must have understood in advance that they were acting on behalf of this other person. It’s not enough to say that after the fact, the court ruled.”

Regarding the other exception, the court said a party who is bound by a judgment can’t avoid that result by re-litigating by proxy.

“The idea is if you lost you can’t get around the preclusion rule by appointing someone else to act as your agent. The court said: ‘We’re going to enforce this exception to the preclusion rule. But it’s not enough that there is a mere whiff of tactical maneuvering between Herrick and Taylor. The party must control the non-party, and it wasn’t really clear in this case whether Herrick in fact controlled Taylor,” Wasserman said.

Lastly, the court rejected the argument that non-party preclusion should apply more broadly in public law litigation.

“The concern the FAA raised is that every person in the United States could claim a right to the documents and the whole country could be suing for the documents, so we should have more flexibility to bar subsequent suits where many people could claim a right,” Wasserman said.

“The Supreme Court rejected that argument, too. It conceded that Congress could set up a statutory mechanism to limit the amount of repetitive litigation. But in the absence of such a statutory remedy, the court wasn’t worried about the possibility of these multiple lawsuits, because even if the subsequent litigants are not bound by the preclusion law, the body of precedent is going to hurt them,” she said.

“If it’s crystal clear you’re not entitled to these documents, that these are protected as trade secrets, what new brilliant theory am I going to come up with to convince a court that there is no trade secret exception in the statute? That’s not likely. So if a second litigant loses and a third litigant loses, it’s not likely people are going to waste resources in a losing proposition.”

—Peter Hart

Filed under: Feature,Volume 41 Issue 3

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