The Supreme Court Preview is back for its second week. This time, I review an upcoming free speech case, a state taxation case (as it applies to Native American tribes), and two civil procedure cases, all of which should be heard by the Court sometime this October.
Thanks again for all your input. So here we go:
Garcetti v. Ceballos (
9th Cir.) [Topic: Free Speech/First Amendment]
Questions Presented:
"1. Should a public employee's purely job-related speech, expressed
strictly pursuant to the duties of employment, be cloaked with First
Amendment protection simply because it touches on a matter of public
concern, or should First Amendment protection also require the speech
to be engaged in "as a citizen"...?
2. Is immediate review by this Court necessary to address the growing
inter-circuit conflict on the question of whether a public employee's
purely job-related speech is constitutionally protected, especially
where the lack of uniformity dramatically impacts the ability of all
public employers to effectively manage their respective agencies?"
Background and Majority Opinion: [authored by Judge Steven Reinhardt, a Carter appointee]
Richard Ceballos was a deputy district attorney in California for several years. One day, the defense attorney on one of the cases his office was prosecuting told him that he believed that the officer who arrested his client lied in a search warrant affidavit. Ceballos discussed this with others in the office, and all agreed that the warrant was suspect. Ceballos sent his supervisor a memo detailing his determination that the affidavit was falsified, but his supervisors decided to carry on with the prosecution pending the outcome of a defense motion challenging the affidavit. While this was going on, Ceballos told the defense counsel that he believed the affidavit was falsified, and the defense subsequently subpoenaed him to testify in support of the defense motion. Cebellos then turned over his memo to the defense, claiming that he was legally obligated to do so, and testified at the motion hearing.
This suit arose after Ceballos's supervisors allegedly retaliated against him (through demotions, threats, etc.) for submitting the memo to the defense and discussing with the defense the potentially falsified arrest warrant. In his suit, Ceballos claimed that the First Amendment protected his actions of submitting the memo and testifying at the motion hearing. The District Court rejected this argument, but the Ninth Circuit reversed, siding with Ceballos.
In its majority opinion, the Ninth Circuit noted that, in determining whether a public employee's speech is constitutionally protected, the Ninth Circuit considers first whether the speech addresses "a matter of public concern", and if so, whether the employee's interest in expressing himself outweighs the government's interest "in promoting workplace efficiency and avoiding workplace disruption." The court held that, according to Supreme Court interpretations of "public concern", Ceballos' speech was a matter of public concern, notwithstanding the fact that the speech was made in the conduct of his employment obligations (which typically would not be protected). Indeed, to produce a rule stating that public employee speech done strictly as part of an employment obligation can never be constitutionally protected, as the defendants urged, "would be particularly detrimental to whistleblowers" who would simultaneously have the duty to notify their superiors about misconduct but no First Amendment protection if their supervisors retaliate against them. The court also found that Ceballos's interest in expressing himself outweighed the government's opposing interests, especially because it was unclear how the speech harmed "workplace efficiency" and disrupted the workplace.
Concurring Opinion: [authored by Judge Diarmuid O'Scannlain, a Reagan appointee]
O'Scannlain concurred with the majority out of deference to Ninth Circuit precedent, with the caveat that he believes the precedent was wrongly decided in the first place and ought to be overruled. In particular, he criticized the result of one Ninth Circuit case (Roth v. Veterans' Administration) that he claimed held that a public employee's speech dealing with matters of public importance is "automatically" protected by the First Amendment. The main problem with this, according to O'Scannlain, is that it ignored the Supreme Court's earlier distinction between public employee speech done as an employee (not protected) and done as a private citizen (protected). This distinction makes sense, since "private citizen" speech is and should be protected as individual speech, but speech done "as an employee" is really in effect the speech of the government, not of the individual employee himself. If virtually all public employee speech was converted to "private citizen speech" simply because it was a matter of "public concern", government offices would not be able to function because every employment decision would become a constitutional matter (and thus be litigated). For these reasons, Roth should be reversed.
Potential Impact/Prediction:
It has long been established that the government can place certain free speech limits on its employees - but just how far can these limits reach? Ceballos bears directly on the question of whether it is necessary for a public employee to be speaking "as a citizen" to receive constitutional protection. If the Supreme Court rejects this requirement, it would likely have the immediate effect of making it more difficult for the government to fire, demote, reassign, etc. its employees for activities done as part of her employment.
So what will happen? Well, red flags should fly when you see the current Supreme Court agreeing to review an opinion by Judge Reinhardt, who is considered one of the more liberal members of the federal bench. With that in mind, I think the Court is unlikely to support what seems like a clear extension of free speech rights in the public employment context. Thus, I believe that the Ninth Circuit will be reversed here, and I'm not sure I would entirely disagree if indeed it is (even though I'm a public employee myself). I certainly side with the party advocating for greater free speech rights most of the time, but it seems reasonable that the government can take action against somebody on the basis of what they said as part of their work. The Ninth Circuit may have overstepped here. In any case, let me know what you think.
Wagnon v. Prairie Band Potawatomi Nation (10th Cir.) [Topic: Indian Affairs/State Taxation]
Questions Presented:
"1. When a State taxes the receipt of fuel by non-tribal distributors,
manufacturers and importers, and such receipt occurs off-reservation, does
the interest-balancing test in White Mountain Apache 1ribe v. Bracker, 448
U.S. 136 (1980), apply because the fuel is later sold by a tribe to final
consumers?
2. Should the Court abandon the White Mountain Apache interest-balancing test
in favor of a preemption analysis based on the principle that Indian
immunities are dependent upon congressional intent?
3. Did the court of appeals err in applying the White Mountain Apache interest
balancing test by, inter alia, placing dispositive weight on the fact that a
tribally-owned gas station derives income from largely non-tribal patrons of
the tribe's nearby casino?"
Background and Majority Opinions: [authored by Judge Monroe McKay, a Carter appointee]
The Prairie Band Potawatomi Nation, a tribe with a reservation in Kansas, built a gas station on its land to provide service for the many visitors to the casino it also operates on its land. Up until 1995, all gas distributed on the Nation's land was not subject to Kansas gas taxes. Nevertheless, the Nation sold its gas at around the going market rate because it placed its own tax on the gas, which it used for Nation activities. In 1995, however, Kansas began collecting tax on gas distributed to Nation lands. Though they made sure this tax would not be placed on Indian gas distributors, the extra costs of non-Indian distributors shipping gas to Nation lands could be passed on to the consumers (i.e. the Nation's gas station). The Nation sued, seeking to invalidate this new tax on two theories: first, that federal law preempts the tax because federal interests against state taxation outweigh Kansas' interests in imposing the tax, and second, that the tax impermissibly infringes on its rights of self-government.
The federal District Court sided with Kansas, but the Tenth Circuit reversed, holding that on either theory the tax should be invalidated. In so doing, the court cited a key Supreme Court case in this area, White Mountain Apache Tribe v. Bracker, which held that when the "legal incidence" of a tax is placed upon non-Indians (rather than Indians themselves, in which case Congress must specifically authorize the tax), a state may enforce the tax if the "balance of federal, state, and tribal interests favors the State." The court held that the balancing test favored tribal interests rather than the state, since the Nation used its own tax to fund important projects within its lands. Further, the court placed importance on the fact that the tribe was "not merely importing a product onto the reservations for immediate resale to non-Indians", but instead was providing a service (the gas station) as part of the casino operations critical to the tribe. In its analysis, the court noted that this case was different than previous Supreme Court cases allowing state taxation when the tribes were taking competitive advantage of the tax-fee situation (by under-pricing its products), because here the tribes sold the gas at fair market rates.
Potential Impact/Prediction:
Given that the Supreme Court agreed to hear all three questions listed above, this case could alter the landscape of state taxation of Indian tribes considerably. I'm not sure whether the Court took this case to clear away the White Mountain Apache balancing test (as Question #2 would imply), or whether the Court simply wants to limit the application of the case (as Question #1 and 3 imply). My guess is the latter, but either way I would expect the Tenth Circuit to be reversed. I think the key is that the series of inferences necessary to go through before the tax affects the tribe (the tax applies only to non-Indian gas distributors, the taxed gas is initially sold off-reservation, and the tribe is only secondarily affected by the tax when the distributors adjust their gas prices upwards as a result of the tax). My guess is that the Court will say the tax would apply under these circumstances without needing to go through the White Mountain Apache "balancing test."
Lincoln Property Co. v. Roche (4th Cir.) [Topic: Civil Procedure]
Questions Presented:
"1.Whether an entity not named or joined as a defendant in the lawsuit can
nonetheless be deemed a "real party in interest" to destroy complete
diversity of citizenship in a case removed from state court....
2. Whether a limited partnership's citizenship for diversity subject-matter
jurisdiction purposes is determined not by the citizenship of its partners but
by whether its business activities establish a "very close nexus" with the
state."
Background and Majority Opinion: [authored by Judge Roger Gregory, a Clinton appointee]
This case deals with issues of civil procedure, every law student's favorite subject. It all began with the plaintiffs (apartment tenants) suing the Lincoln Property Co. (the apartment owners' parent company) on various theories after finding evidence of toxic mold in their apartment. The plaintiffs had brought the case in Virginia state court, but the defendants removed it to federal court (which tends to be more pro-defendant than state courts). They did so on the basis of "diversity jurisdiction", which allows federal courts to hear cases when the parties involved are citizens of different states. The plaintiffs objected to this removal, however, contending that there was not complete diversity of citizenship because though Lincoln Property Co. was from Texas, the property was actually managed by a Virginia subsidiary of the Lincoln Property (which was not, however, named in the state court lawsuit). Further, the plaintiffs contended that Lincoln Property Co. was not actually a corporation at all, but was instead a partnership that included a Virginia resident as one of its partners (thus defeating "diversity of citizenship"). Having fun yet? Anyway, the federal District Court rejected the plaintiff's objections, and the plaintiffs appealed.
The Fourth Circuit reversed. The court noted first that diversity of citizenship is not referenced merely by the parties actually named in the suit, but between the "real and substantial parties in interest" (i.e. any parties with an interest in the outcome of the litigation). Further, when diversity of citizenship is challenged, the burden of proof is allocated to the party claiming that there is diversity, and the citizenship of each "party in interest" must be demonstrated. The court held that Lincoln Property failed to demonstrate that each of its partners is not a Virginia citizen. Additionally, the court relied upon the fact that Lincoln Property, although from Texas, has established a "very close nexus" with Virginia through its business activities.
Potential Impact/Prediction:
Defendants, particularly corporate defendants, would rather be in federal court rather than state court, because federal courts tend to be far more defendant-friendly. This case should clarify where a good deal of future cases involving many corporations will end up - in more plaintiff-friendly state court, or in federal court.
Roche was presumably taken because of a deep Circuit Court split on the questions presented in this case. My belief is that the Supreme Court's opinion will take the pro-corporate side here, thereby reversing the Fourth Circuit on both questions. If so, the result will be that certain businesses can avail themselves of federal court even when they do a lot of business in that state, and it will be more difficult to sue certain parent companies in state court.
Unitherm Food Systems v. Swift-Eckrich (Fed. Cir.) [Topic: Civil Procedure/Juries]
Question Presented:
Whether, and to what extent, a court of appeals may review the sufficiency of evidence supporting a civil jury verdict where the party requesting review made a motion for summary judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure before submission of the case to the jury, but neither renewed that motion under Rule 50(b) after the jury's verdict, nor moved for a new trial under Rule 59.
Background and Majority Opinion: [authored by Judge Arthur Gajarsa, a Clinton appointee]
Unitherm Food Systems, a food industry manufacturer, sued Swift-Eckrich, Inc. (the parent company of ConAgra foods) on various theories, including a claim that Swift attempted to create an illegal monopoly in the market for precooked meat. The trial was in front of a jury, but before the jury came back with a verdict, Swift filed a motion claiming that Unitherm did not present adequate evidence to support a jury verdict in its favor on the antitrust question. The federal District Court rejected the motion, and the jury returned a verdict for Unitherm. Rather than renewing its motion following the verdict or filing a motion for a new trial (both allowed under civil procedure rules), Swift appealed directly to the Federal Circuit.
The Federal Circuit accepted the appeal, reviewed the sufficiency of the evidence of Unitherm's antitrust claim, and then reversed the District Court on the basis that (contrary to the District Court's determination) there was not enough evidence to support the antitrust claim. The court's basis for doing so spans several pages, but it is unnecessary to get into any of it since the single question the Supreme Court opted to hear concerns simply whether and to what extent the Federal Circuit can review the sufficiency of evidence supporting a jury verdict under the circumstances presented here.
Potential Impact/Prediction:
This case concerns a narrow piece of civil procedure law that will undoubtedly have some (though relatively minor) real-world consequences but will really generate interest only to law professors, civil procedure junkies (is there such a thing?), and antitrust law practitioners. In any case, I predict that the Federal Circuit will be reversed, in no small part because the United States has weighed in on the side of the petitioner. The United States' amicus curiae brief urges reversal on the basis that the decision below departed from previous precedent, and I would expect the Court's opinion to make similar points.