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ChAIr’SmESSAgE Edwin P. Voss, Jr., is a partner in the Richardson, Texas, law firm of Brown & Hofmeister and is the Chair of the Section. Gratitude built as protection from the Apache. Part of the old walled presidio still exists today, and its nickname, “Old “If a man is to be obsessed by something, I suppose a Pueblo,” is now extended to the city as a whole. boat is as good as anything, perhaps a bit better than most.” —E.B. White. Founded under Spain, Tucson became a Mexican town when Mexico won independence from Spain in 1821. In A s we end this year and begin a new one in our 1853, the United States acquired land from Mexico (includ- Section, I arrive as Chair with much gratitude for ing Tucson) known as the Gadsden Purchase. Before 1863, our (very!) outgoing Chair, Dwight H. Merriam. when Arizona gained territorial status, Tucson briefly Our Captain has maintained the helm this past year belonged to the Confederacy. Tucson became the capital of with aplomb and good humor. Most of you know of the Arizona Territory in 1867. Dwight’s love of the wind, sail, and sea. Indeed, our year Tucson has played an integral role in the romance of with Dwight in command began with his reception in the Old West. The Old Pueblo was the scene of gun- San Francisco aboard the SS Jeremiah O’Brien, a World fights, brawls, and other skirmishes. Nearby Tombstone War II Liberty Ship, rich with history that remains fully was the site of the legendary gunfight at the O.K. operational today. Corral. Afterwards, U.S. Marshall Wyatt Earp and From there, our adventurous Captain hoisted the friends traveled to California and, while at the Tucson Section’s Fall Meeting flag in his own backyard (sort of): trail station, avenged the shooting of Morgan Earp. The Providence, Rhode Island. Notably, we were treated to great gold rush also brought prospectors to Southern a very special reception at the U.S. Naval War College. Arizona, and mining (e.g., copper, silver, zinc) has been Finally, Dwight chose Portland, Oregon, as the site part of the Arizona economy ever since. for our Section’s Spring Meeting. Besides being the By the time it became the 48th state in 1912, Arizona home town of several of our Section’s leaders, Portland’s was famous for sunny climates and dry air, making it natural beauty, surrounded by water, was marvelous. At ideal as a healthful spot to visit and settle. And our these meetings, the Section’s programming and presen- Section’s Fall Meeting is planned to take advantage tations were top knot. of those same benefits. Tucson aggressively preserves To our Old Salt, we extend our thanks, and always its multicultural heritage and pioneer spirit, yet it has wish you “fair winds and following seas.” grown considerably in the last half century. We will I inherit from Dwight a section that is in ship learn about the challenges that result from that growth shape. Our finances are operating in the black, we have during our meeting, September 22–25, 2011. Our pro- increased our membership, and our fine ABA staff (ship- grams will feature land use, water, environmental, elec- mates Tamara and Marsha) keep us on an even keel. tion, and immigration topics. Now, on to the desert. Our accommodations in Tucson, the Loews Ventana The name “Tucson” is derived from a Pima Indian Canyon Resort, nestled in the foothills of the Santa word, “Stjukshon” or “Chuk-son,” meaning “spring at Catalina Mountains, will be fabulous. Go to www.loew- the foot of a black mountain.” The Pimas, the Native shotels.com/en/Ventana-Canyon-Resort and you will see Americans who occupied the site of present-day Tucson what I mean. when the first white settlers arrived, were referring to We are thankful for those who have gone before us, the Santa Cruz River, which used to flow near the base both in the Section and in Tucson. Come join us at the of the Tucson Mountains (it is mostly a dry river bed Old Pueblo! now). Tucson was officially founded in 1775 as a Spanish In your service, colony, and the Presidio San Augustin del Tucson was Ed Voss Calling All Friends of the Section! Connect with the Section on Facebook. www.facebook.com/pages/Chicago-IL/ABA-Section-of-State-and-Local-Government-Law/151505107412State & Local Law News, Volume 35, Number 1, Fall 2011 3
ABA Section of State and Local Government Law 201122–25, 2011 Council Meeting September Fall Loews Ventana Canyon Tucson, Arizona u uThursday, September 22, 2011 1:00 p.m. to 2:00 p.m. Luncheon Keynote Speaker: Grady Gammage, Jr., Gammage &4:00 p.m. to 5:00 p.m.—Executive Boardroom Burnham, Phoenix, ArizonaExecutive Committee Meeting 2:15 p.m. to 3:15 p.m.5:00 p.m. to 6:00 p.m. Committee: Government Operations and Liability/ABA StandingConflict of Interest Restriction After Carrigan: Committee on Election LawLegislative Voting and the First Amendment Trends in State and Local Election Law: Planning for the FutureCommittee: Ethics This program will consist of a look at evolving trends in state andThis program will include a panel discussion of the recent U.S. local election law as they will affect election officials, state and localSupreme Court opinion in Nevada Commission on Ethics v.Carrigan. At the heart of this case is how far a state can go to lawyers, and election advocates for the next decade, including:police public officials who face a potential conflict of interest • Citizenship Voting and Registration: Renewed questions onwhen conducting government business. The panel will discuss voter qualification, proof of citizenship, and disqualificationthe case, the ruling, its ethical implications, and questions still to for felons and others;be answered. • Voter ID Laws: The trend towards requirements that all voters possess a “real” ID;6:00 p.m. to 7:00 p.m.—Ventana Room • Absentee Balloting: Increased use will change elections, electionNetworking Reception administration, and raise questions as to how absentee ballots should be counted;Friday, September 23, 2011 • Vote Counting: The next trend in voting machines; • Recounts & Contests: Challenges will involve sophisticated7:00 a.m. to 6:00 p.m. analysis of absentee and other votes; and,Section Registration & Hospitality • Redistricting: Is it now all politics with little to challenge in the7:00 a.m. to 8:00 a.m.—Ventana Room courts?Continental Breakfast 5:00 p.m. to 8:00 p.m.8:00 a.m. to 9:30 a.m. Dinner—Arizona Sonora Desert Museum Ocotillo CaféCommittee: Public Finance 2021 North KinneySelling Assets to Balance Budgets 3:30 p.m. Board bus for MuseumThis program includes technical and legal issues of asset sales, This is a ticketed event, not included in the general registration fee.revising state laws to facilitate sales, infrastructure financing, The cost is $75 per person.federal funding and tax incentives.9:45 a.m. to 11:15 a.m. Saturday, September 24, 2011Committee: Environmental Law 7:00 a.m. to 5:00 p.m.A Presentation on Arizona Water Use Law— Section Registration & HospitalityWith an overview of the history and case law impacting therights to use the available water and ownership of the river- 7:00 a.m. to 8:00 a.m.—Ventana Roombeds and streams Continental BreakfastSpeakers: Michael J. Pearce, Phoenix, AZ 8:00 a.m. to 9:00 a.m. Rhett A. Billingsley, Phoenix, AZ Nicole D. Klobas, Phoenix, AZ Urban Lawyer Advisory BoardActive Arizona water law practitioners, some with experience in 8:00 a.m. to 9:00 a.m.the Arizona Department of Water Resources, will provide an Revenue Enhancement Committeeinsightful discussion of the unique issues facing Arizona regard- 9:00 a.m. to 12:00 p.m. (concurrent meetings)ing the utilization of water, rights to water, and the rights to the ABA Standing Committee on Election Law Meetingsriver and stream beds. The discussion also will focus on the famousColorado River basin and other river basins within Arizona. 9:00 a.m. to 10:00 a.m.11:30 a.m. to 12:45 p.m. Electronic Communications CommitteeCommittee: Government Operations 9:00 a.m. to 10:00 a.m.Immigration CLE Diversity Committee4 State & Local Law News, Volume 35, Number 1, Fall 2011
10:00 a.m. to 12:00 p.m. HOTEL INFORMATIONPublications Oversight Board Loews Ventana Canyon offers guests a premier luxury hotel11:00 a.m. to 12:00 p.m. designed to provide both comfort and value. Stroll the resort’sLand Use Committee Business Meeting own half-mile paved nature trail and learn the wonders of the Sonoran Desert. Just minutes from the resort is an intricate trail11:00 a.m. to 12:00 p.m. system with adventures for all skill levels. While visiting thisContent Advisory Board Tucson attraction, take a trip up to Seven Falls and enjoy the12:00 p.m. to 1:00 p.m. waterfalls or hike the Phoneline trail with breathtaking views ofSubstantive Committee Business Meetings: Condemnation, Public the city below. Join the hotel for stargazing on Wednesday andFinance, Government Operations, Environmental, Ethics, Public Saturday nights. The sky is the limit with the resort’s own tele-Education, Emergency Management, Diversity Law, Model Pro- scope and a University of Arizona astronomy professional, whocurement Code will guide you through stars, planets and galaxies.1:00 p.m. to 2:00 p.m. A block of rooms has been reserved on a priority basis forMembership Committee program registrants. Room rates at the Loews Ventana Canyon are $149, single/double. This rate is available three days prior andSunday, September 25, 2011 three days following the Section’s listed meeting dates. You may reserve your accommodations by calling the hotel8:30 a.m. to 11:00 a.m. directly at 520-299-2020, or online at www.loewshotels.com/en/Council Breakfast Meeting Ventana-Canyon-Resort. Be sure to refer to the ABA Section of State & Local Government Law’s 2011 Fall Meeting, andSPECIAL EVENTS guarantee your reservation by credit card or deposit check. Rooms will be available for check-in no later than 3:00 p.m. with check-Thursday, September 22, 2011 out time of 12:00 p.m. Individuals with guaranteed reservationsJoin us and enjoy a delicious meal in the middle of the des- must cancel their reservations 24 hours prior to the scheduledert. We will have dinner at the Desert Museum Ocotillo day of arrival to avoid a one-night cancellation charge.Café. The Museum is a cultural center, zoo, natural history Please, make your reservations NOW. The hotel will releasemuseum, and botanical garden in one, with almost two miles our room block on Wednesday August 31, 2011 at 5:00 p.m. (CST).of paths traversing 21 acres of beautiful desert. The museum’sOcotillo Café is a seasonal casual fine dining restaurant, which SPECIAL AIRLINE DISCOUNTShas a menu that consists of Southwestern gourmet cuisine. Airfare discounts to ABA meetings are available through ABA Online Travel, Orbitz for Business, the ABA’s travel agency, orREGISTRATION APPLICATION directly from the airlines. To access ABA Online Travel, go toThe registration fee includes the CLEs and Hot Topics materi- http://www.abanet.org/travel/als. Payment must accompany registration. Confirmations will American: Call 800-433-1790 code 20348be sent to all registrants. United: Call 800-521-4041 code 578IG Register online through the Section website at www.americanbar. Continental: Call 800-468-7022org/groups/state_local_government/events_cle.html (credit card Z code ZEPB—Agreement code BQGH95.only). Continental discounts are also available at Or Send Via Fax 312-988-121 (credit card only) Or Mail www.continental.com > enter ZEPBBQGH95 into: Marsha Boone, ABA Section of State & Local Government the “offer code box”Law, 321 North Clark St. Chicago, IL 60654-7598 CANCELLATION POLICYCLE CREDIT Refund requests must be made in writing (via email or U.S. mail)Accreditation has been requested for this program from every state and received in the Section of State & Local Government Law’s(including CA and PA) with mandatory continuing legal educa- office on or before September 2. All refunds will be reduced by ation (MCLE) requirements for lawyers. Please be aware that each $25 administrative fee. Substitutions may be made at any time.state has its own rules and regulations, including its own defini-tion of “CLE.” Certificates of attendance will be available at the NO refunds will be made after September 2.program for both attendees and speakers. If you have questions Early Bird Registration ends on August 31.about the number of CLE credit hours granted by each state, youmay call 800-285-221 starting two weeks before the program. To register for the State and Local Government Law Fall Meeting in Tucson,AMERICANS WITH DISABILITIES ACT Arizona, visitFor those individuals with disabilities who need special arrange-ments while attending the program, please contact Marsha www.americanbar.org/groups/Boone, at the American Bar Association, 312-988-5649. state_local_government/events_cle.htmlState & Local Law News, Volume 35, Number 1, Fall 2011 5
Is Zoning Coming to an Ocean Near You? By John M. Boehnert and Adena LeibmanT he answer is that zoning certainly could be coming to planning identifies areas most suitable for various types or an ocean, or one of the Great Lakes, near you, given classes of activities in order to reduce conflicts among uses, reduce environmental impacts, facilitate compatible uses, the national, and even international, interest gener- and preserve critical ecosystem services to meet economic,ated by the State of Rhode Island’s first-in-the-nation environmental, security and social objectives.ocean zoning regulatory program. And the impetus for such ocean zoning could be as In other words, the end result helps identify zonesdiverse as the interests of the regions impacted. It may be and areas where development activities should be limitedinitiated to foster alternative energy development, as result- because of sensitive resources or areas needing specialed from the intense interest in wind energy in Rhode Island protection, as well as to identify areas suitable for moreand certain other Atlantic Coast states, or it may be initi- intensive uses, such as shipping and marine transportation,ated to protect the marine ecosystem from disasters such mineral extraction, or offshore energy development.as oil spills, which have recently impacted the Gulf Coast. What Is Rhode Island’s Ocean SAMP?What Is Ocean Zoning? The Rhode Island plan, known as the Ocean Special AreaOcean zoning may be thought of as an effort to establish Management Plan, or Ocean SAMP in shorthand, is anspecific use zones for ocean waters, based on detailed ecosystem-based management plan for a defined area thatresearch and categorization of the ecology of the region requires detailed regulation because of special or uniquein question, including oceanography (geological, physical, characteristics. It has been referred to as the nation’s firstchemical, and biological) and meteorology, as well as the zoning of offshore waters to regulate uses and controlstudy of other areas of the marine environment and its development, including the fostering of preferred usesuses. These additional studies can include global climate such as alternative energy production, principally windchange and its potential impact on the region, cultural power.and historical resources, fisheries, recreation and tourism, Rhode Island’s Ocean SAMP was formally adopted byshipping and navigation, and other factors or uses specific Rhode Island’s Coastal Resources Management Councilto the region. These use zones, once delineated, can allow, (CRMC) on October 19, 2010, for Rhode Island waterslimit, or deny particular types or intensities of uses. and became effective for state regulatory purposes on Such zoning would effectively implement the results December 26, 2010.of “marine spatial planning,” which is defined by the While Rhode Island is familiarly known as “LittleInteragency Ocean Policy Task Force (a federal multi- Rhody,” there is nothing little about this ambitious plan.agency task force formed by Executive Memorandum in In fact, it covers 1,467 square miles of offshore waters com-June 2009 by President Obama and charged with develop- prised of both the state waters of Rhode Island and fed-ing a national ocean policy) as follows: eral waters off the coasts of Rhode Island, Massachusetts, a comprehensive, adaptive, integrated, ecosystem-based, Connecticut, and New York. The Ocean SAMP covers an and transparent spatial planning process, based on sound area approximately 50% larger than the land area of Rhode science, for analyzing current and anticipated uses of ocean, Island (1,045 square miles) and about equal to Rhode coastal, and Great Lakes areas. Coastal and marine spatial Island’s total land and water area of 1,545 square miles. The Ocean SAMP required, and recently received, approval from the National Oceanic and Atmospheric Mr. Boehnert practices real estate and Administration (NOAA) as a programmatic change to environmental law, including coastal Rhode Island’s Coastal Resources Management Program, permitting, in Providence, Rhode confirming it as part of the federally approved state pro- Island. He is currently writing a book gram on ocean zoning. Because the Ocean SAMP covers more than state waters, a separate and distinct federal approval is also Ms. Leibman is a second year student required to confirm the Ocean SAMP as part of the at Lewis & Clark Law School, has enforceable policies of Rhode Island’s coastal resources undergraduate and graduate degrees management program, which would extend the influence in marine science, and worked on of the state over federal waters under the federal consis- coastal regulatory issues while serv- tency program, as discussed below. ing as a NOAA Sea Grant Fellow The Ocean SAMP is available for review on CRMC’s in the office of U.S. Senator Sheldon website at www.crmc.ri.gov/samp_ocean/finalapproved/RI_ Whitehouse (D-R.I.). Ocean_SAMP.pdf.6 State & Local Law News, Volume 35, Number 1, Fall 2011
Why a Rhode Island Ocean SAMP? Given the extensive nature of the report, only a briefThe stated rationale for CRMC undertaking the Ocean outline of the key chapters can be provided here.SAMP process was to meet ambitious requirements foralternative energy production imposed by state statute and Chapter 2: Ecology of the Ocean SAMP Regionexecutive order to reduce Rhode Island’s reliance on fossil The SAMP summarizes extensive findings regardingfuels. The siting of offshore renewable energy facilities was the ecology of the region, including detailed informa-seen as critical to accomplishing these goals, and coastal tion concerning wind, storm, wave, and tide patterns,regulators concluded this necessitated a detailed planning seafloor geology, and the biological composition of theand regulatory tool to site such facilities. complex benthic and pelagic ecosystems present in the In fact, two of the stated objectives CRMC advanced region, which support a variety of life from zooplanktonin proposing the Ocean SAMP were the streamlining of to megafauna. Enforceable policies include the preserva-federal and state permitting processes for such offshore tion and restoration of ecosystems as the primary guidingfacilities and establishing a cost-effective permitting envi- principle for measurement of environmental alterationronment for potential investors. of coastal resources; activities must be designed to avoid adverse impacts to such ecosystems and if such impactsHow Was the Rhode Island Ocean SAMP Developed? are unavoidable they must be minimized and mitigated.Costing over $8 million and taking over two years to studyand draft, Rhode Island’s Ocean SAMP was developed Chapter 3: Global Climate Changein a collaborative process led by CRMC, which relied on This chapter addresses the implications of global climateuniversity and educational resources, including scientists, change for the region, including sea level rise, morepolicymakers, educators, and university staff. A large and intense storms, accelerated rates of erosion, and theactive stakeholder group that included representatives of consequences these implications may have for coastalenvironmental organizations, fishermen, acquaculturists,government officials, alternative energy authorities, andother interested parties also was involved throughout the 2010 –11 Studententire process. Rhode Island officials also collaborated with neigh- Excellence Awardsboring states, given the extensive waters covered, and Each year the Section of State and Local Governmententered into a Memorandum of Understanding with Law recognizes outstanding students working in theMassachusetts, pledging cooperation in the develop- areas of land use law and local government law at thement of wind energy projects in a 400-square-mile “Area nation’s law schools. Each honoree is nominated byof Mutual Interest” within the Ocean SAMP region. the dean of his or her law school for this recognition.Moreover, CRMC worked closely with federal regulators The student honored receives a special award thatthroughout the entire process, given that the program includes a current Section publication and a cer-would ultimately be subject to federal review and approval. tificate of recognition. The 2010–11 award recipients The process involved the collection and analysis of and their law schools are:existing data about the region, gathering new information Sebastian M. Lombardi and DeVaughn L. Ward,through studies and research, and assembling and working University of Connecticut School of Law;with advisory groups and a large stakeholder group. Kristen Kay Erickson, Justin Dean Young, and Technical advisory groups were formed for each of the Jason M. Marino, Washington University Schoolchapter topics addressed in the Ocean SAMP, and a sci- of Law;ence advisory task force was used to address the scientific Betty Burley, Cleveland-Marshall College of Law;aspects of the plan. Brendan Bylee, Brigham Young University–J. Reuben The result was a regulatory document of nearly 1,000 Clark Law School;pages, and an even longer Appendix, addressing 1,467 Katharine Casaubon, Quinnipac University Schoolsquare miles, beginning 500 feet off of Rhode Island’s of Law;coast and extending 30 miles offshore. Sarah Smith, The College of William & Mary The Ocean SAMP area encompasses Rhode Island Law School;state waters (which extend to three nautical miles) and Daniel F. McGraw and Kevin A. Gardner,federal waters, and abuts (but does not include) state waters The Dickinson School of Law;of Massachusetts, Connecticut, and New York. Thomas J. Major, Rutgers, The State University of New Jersey Law School;What Does the Ocean SAMP Do? Michael Frascarelli and Eric Garofano, Albany LawThe Ocean SAMP sets forth the results of extensive School; andstudies and investigations that formed the basis of poli- James Byron Hicks and Emily B. Pickering, Cornellcies and standards pertaining to uses and development Law School.within the Ocean SAMP region.State & Local Law News, Volume 35, Number 1, Fall 2011 7
infrastructure and recreation, marine navigation, and with federal regulators to develop a “seamless” review andtransportation. This is an important chapter, as it is an design approval process for offshore wind energy facilitiesarea CRMC takes seriously. Enforceable policies include consistent across federal and state waters.prohibiting land-based and offshore development proj-ects that will threaten safety or have adverse environ- Chapter 11: Regulatory Standardsmental impacts based on anticipated sea-level rise. The Ocean SAMP promulgates regulatory standards for large- and small-scale offshore development projects thatChapter 4: Cultural and Historic Resources include requirements for detailed documentation to beThis chapter catalogues numerous resources, such as submitted to the state at various stages throughout thesubmerged pre-contact tribal landscapes, and historic project and detailed standards for development activitiesshipwrecks. (Rhode Island coastal waters have perhaps themselves.the largest number of known Revolutionary War ship- The regulatory standards also designate and regulatewreck sites in the country.) Enforceable policies include certain sensitive areas for increased protection.prohibiting activities that will adversely impact the “Areas of Particular Concern” are areas of unique orstate’s cultural, historic, or tribal resources, and requiring fragile features, having important habitats, harboring sig-archeological surveys as part of the permitting process nificant historical or cultural features, or being importantfor projects that may pose a threat to such resources. for navigation, transportation, or military or other uses. These areas can include offshore dive sites or historicalChapter 5: Commercial and Recreational Fisheries shipwrecks.This is the second longest chapter and provides detailed “Areas Designated for Preservation” are areas to beinformation about fisheries resources as well as a detailed preserved because of their ecology, and large-scale offshorediscussion of commercial and recreational fisheries in the development, mining and mineral extraction, and otherregion. Enforceable policies include protecting commer- incompatible development are prohibited. These areascial and recreational fisheries within the region from the include certain sea duck foraging habitat and areas identi-adverse impacts of other uses. fied as critical habitat under the Endangered Species Act.Chapter 6: Recreation and Tourism What Are the Benefits of the Ocean SAMP?This chapter addresses marine recreation as well as This, of course, depends on whom you ask. Whether one sup-shore-based recreational activities adjacent to the Ocean ports or opposes the concept of ocean zoning, it appears thereSAMP region, with enforceable policies including pro- are several benefits arising from the Ocean SAMP.moting uses of the region that do not significantly inter-fere with recreation and tourism. Blueprint for Plans in Other Jurisdictions Perhaps its greatest benefit is that it has been enacted byChapter 7: Marine Transportation, Navigation, and a state. It therefore presents a substantive model for oceanInfrastructure zoning regulation. Other states and jurisdictions are free toThis section of the Ocean SAMP details navigational study it and revise it as they see fit.considerations, shipping lanes, vessel routes, anchor- Not only does it present a substantive role model for study,ages, Navy restricted areas, right whale management it also presents a procedural role model. Rhode Island didareas, and other transportation activities and issues. enact a final Ocean SAMP, despite the contentious issuesEnforceable policies include an acknowledgement that and competing interests involved. The process employed isthe SAMP region is heavily used for designated naviga- therefore worth studying and perhaps emulating.tion areas and the impacts of any change in spatial usepatterns on marine transportation must be carefully Establishes Renewable Energy Zonesevaluated. Supporters of renewable energy, and that appears to be a rapidly expanding group, would find one of the significantChapter 8: Renewable Energy and Other Offshore benefits of the Ocean SAMP to be that it designates aDevelopment renewable energy zone, Type 4E, south of Block Island inThis is the largest chapter of the Ocean SAMP, dis- Rhode Island state waters.cussing various forms of renewable energy, including Renewable energy facilities can be sited here in order towind, wave, solar, biomass, and geothermal. Its focus have minimum interference and minimum adverse impactsis on wind energy, which is seen as the most feasible of to fisheries, navigation and shipping, recreation and tour-the available technologies that can generate electricity ism, and other marine uses. Although this designatedon a utility-scale in Rhode Island. Enforceable policies zone is the preferred site for the development of large scaleinclude support for increased renewable energy pro- renewable energy facilities, it is not the only area whereduction with a focus on the potentials of wind energy, such facilities may be located. The Ocean SAMP specifi-designating a renewable energy zone, more specifically cally provides that offshore renewable energy developmentdiscussed below, and a commitment by CRMC to work (continued on page 12)8 State & Local Law News, Volume 35, Number 1, Fall 2011
SuprEmE COurT WATCh By Sophia M. Stadnyk the enforcement of the matching funds provision 2; on appeal, the U.S. Court of Appeals for the Ninth Circuit An End-of-Term Roundup: reversed concluding that the provision imposed only a minimal burden and that the burden was justified by the state’s interest in reducing quid pro quo political corrup- From Clean Elections tion.3 to Clean Air to Mortal In a 5–4 ruling, the Supreme Court reversed, in a majority opinion authored by Chief Justice Roberts. Kombat “We hold that Arizona’s matching funds scheme sub- stantially burdens protected political speech withouth ere’s a look at the Supreme Court’s recent decisions serving a compelling state interest and therefore violates of interest to local government lawyers.1 the First Amendment.”4 Referring to Davis v. Federal Election Comm’n5 (invalidating an election finance lawSubsidies of Political Speech and the First Amendment that unconstitutionally forced a candidate “to chooseArizona Free Enterprise Club’s Freedom Club PAC v. between the First Amendment right to engage in unfet-Bennett, 79 U.S.L.W. 4640, 2011 WL 2518813 (U.S. tered political speech and subjection to discriminatoryJune 27, 2011). A state law, the Arizona Citizens Clean fundraising limitations”), the Court held that if “theElections Act, created a voluntary public financing sys- law at issue in Davis imposed a burden on candidatetem to fund the primary and general election campaigns speech, the Arizona law unquestionably does so as well.”6of candidates for state office. The candidates who opted in Specifically, once a privately financed candidate hadagreed, among other things, to limit their expenditure of raised or spent more than the state’s initial grant to apersonal funds for the campaign to $500, participate in at publicly financed candidate, each personal dollar spent byleast one public debate, adhere to an overall expenditure the privately financed candidate resulted in an award ofcap, and return all unspent public moneys to the state. almost one additional dollar to his opponent. This “pen-In exchange, the candidate was entitled to receive public alty” “plainly force[d] the privately financed candidatefunding for his or her campaign in the form of matching to ‘shoulder a special and potentially significant burden’or “equalizing” funds. In essence, once a defined thresh- when choosing to exercise his First Amendment right toold was met (based on the amount of money a privately spend funds on behalf of his candidacy.” 7financed candidate received in contributions, combined Moreover, unlike the law in Davis, this statutorywith the expenditures of independent groups made in scheme was, to some extent, beyond the control of thesupport of that candidate), the publicly financed candi- privately financed candidate: even if that candidate opteddate was eligible to receive a dollar in additional state to spend less than the initial public financing cap, anyfunding for each additional dollar over the threshold that spending by independent expenditure groups to promotea privately financed candidate received in contributions the privately financed candidate’s election—regardless ofor spent on his campaign. (Under state law, a privately whether the candidate sought such support or it helpedfinanced candidate could raise and spend unlimited him—could trigger matching funds. This was “a sub-funds, subject to state-imposed contribution limits and stantial advantage for the publicly funded candidate,”disclosure requirements.) Once the public financing cap who could allocate the matching funds as the candidatewas exceeded, additional expenditures by independent saw fit, which the privately financed candidate could notgroups could result in dollar-for-dollar matching funds do with the independent group expenditures that trig-as well. gered the matching funds.8 The burden the Arizona law John McComish was a member of the State House of imposed on independent expenditure groups was sig-Representatives. McComish, other candidates, and two nificant as well. Once the spending cap was reached, anindependent expenditure groups (political action com- independent expenditure group that wanted to support amittees), challenged the constitutionality of the match- particular candidate could only avoid triggering match-ing funding law, claiming that it unconstitutionally ing funds in one of two ways: opt either to change itspenalized their speech and burdened their ability to fully message from one addressing the merits of the candidatesexercise their First Amendment rights. At first instance, to one addressing the merits of an issue or to refrain fromthe district court entered a permanent injunction against speaking altogether.9 Arizona’s matching funds provision was not justifiedSophia M. Stadnyk is senior associate counsel with the International by a compelling state interest. Although the purposeMunicipal Lawyers Association in Bethesda, Maryland. of the matching funds provision was to “level the play-State & Local Law News, Volume 35, Number 1, Fall 2011 9
ing field” in terms of candidate resources, the Supreme narrowly drawn to serve that interest. California failed toCourt had previously rejected the argument that the meet that standard. “At the outset, it acknowledges thatgovernment had a compelling state interest in such it cannot show a direct causal link between violent video“leveling” that would justify undue burdens on political games and harm to minors.”18 Further, the law was “seri-speech.10 Similarly, if the interest was one of combating ously underinclusive” in a respect that rendered “irrelevantcorruption (the quid pro quo of election contributions), the contentions of the concurrence and the dissents thatthe Court found that burdening a candidate’s expen- video games are qualitatively different from other portray-diture of his own funds on his own campaign did not als of violence” by not including other media (e.g., movies)further the state’s anti-corruption interest, nor did the and leaving open the possibility of access by children soburden on independent expenditures.11 In fact, much of long as a parent or relative purchased the game, withoutthe speech burdened by the matching funds provision “any requirements as to how this parental or avunculardid not pose a danger of corruption, and any increase in relationship is to be verified.”19 In addition, as a means ofspeech resulting from the law was “of one kind and one assisting concerned parents, it was seriously overinclusivekind only—that of publicly financed candidates.”12 because it abridged the First Amendment rights of minors whose parents (and aunts and uncles) thought violentRestricting Access to Violent Video Games video games were a harmless pastime. “[T]he overbreadthBrown v. Entertainment Merchants Ass’n, 79 U.S.L.W. in achieving one goal is not cured by the underbreadth in4658, 2011 WL 2518809 (U.S. June 27, 2011). In 2005, achieving the other.”20California passed a law that restricted the sale or rental The majority rather gleefully pointed out that violentof violent video games to minors. The law prohibited entertainment for youth had been around for a longthe sale or rental of “violent video games” to minors time. “Reading Dante [in the Inferno, corrupt politiciansand required their packaging to be labeled “18.” The act struggle to stay submerged beneath a lake of boilingcovered games in which the options available to a player pitch, lest they be skewered by devils above the surface]included killing, maiming, dismembering, or sexually is unquestionably more cultured and intellectually edify-assaulting an image of a human being, if those acts were ing than playing Mortal Kombat. But these cultural anddepicted in a manner that “[a] reasonable person, con- intellectual differences are not constitutional ones.”21sidering the game as a whole, would find appeals to adeviant or morbid interest of minors,” that was “patently Change in the Law and Searches Incident to Arrestoffensive to prevailing standards in the community as Davis v. United States, 131 S. Ct. 2419 (2011). The ques-to what [was] suitable for minors,” and that caused “the tion presented in Davis was this: whether evidence wasgame, as a whole, to lack serious literary, artistic, politi- admissible under the good-faith exception to the exclu-cal, or scientific value for minors.”13 By requiring that the sionary rule, when the evidence was obtained duringpurchase of violent video games could be made only by a search that was conducted in objectively reasonableadults, the act aimed to ensure that parents could decide reliance on a precedent holding such searches lawfulwhat games were appropriate for their children. under the Fourth Amendment, but, after the search, that In a 7–2 ruling, the Supreme Court affirmed the deci- precedent was overturned by the Supreme Court.sion of the Ninth Circuit, finding that the law violated the In 2007, police officers stopped the car in whichFirst Amendment, “reject[ing] a State’s attempt to shoe- Davis was a passenger. The driver was arrested after fail-horn speech about violence into obscenity.”14 California ing sobriety tests, and Davis was arrested for giving ahad acknowledged that video games qualified for First fake name. Because he continued to “fidget” after beingAmendment protection, and the fact that such games told not to do so, the officers decided to do a pat-downwere “interactive” (the player participated and determined search, asking him to step out of the car and handcuffingthe outcome) was constitutionally irrelevant. The law, him. They also searched his jacket, which he left on thethe Court ruled, wished “to create a wholly new category seat, and found a gun in the pocket. Before the vehicleof content-based regulation that is permissible only for was towed from the scene, the officers inventoried itsspeech directed at children. That is unprecedented and contents, as required by police department policy, andmistaken.”15 As in its prior ruling in United States v. prepared a written inventory report. Davis’s motion toStevens,16 the state tried to make violent-speech regula- suppress was denied on the basis that the gun had beention look like obscenity regulation by “appending a saving found during a valid search incident to arrest under Newclause” required for the latter. “That does not suffice. Our York v. Belton, 22 with the court noting that the partiescases have been clear that the obscenity exception to the agreed that the current law squarely covered these facts.First Amendment does not cover whatever a legislature Davis sought to preserve his rights given the then-pend-finds shocking, but only depictions of ‘sexual conduct.’”17 ing decision of the Supreme Court in Arizona v. Gant, 23 Because the act imposed a restriction on the content of which could affect the legality of the search.protected speech, it was invalid unless the state could dem- Gant explained that lower courts across the nation hadonstrate that it passed strict scrutiny—that the restriction “widely understood” that the Supreme Court’s decisionwas justified by a compelling government interest and was in Belton established a bright-line rule that permitted10 State & Local Law News, Volume 35, Number 1, Fall 2011
vehicle searches incident to the lawful arrest of a vehicle’s to speak with his parent or guardian. J.D.B. confessedrecent occupant, even when there was no possibility the to the break-in. The police officer then told him that hearrestee could gain access to the vehicle at the time of the did not have to talk to the officer and that he was free tosearch. Gant, however, ultimately read Belton more nar- leave. J.D.B. continued to provide more details on whererowly, restricting a search of a vehicle incident to a lawful certain items could be located. When officers visitedarrest as including the vehicle’s passenger compartment J.D.B.’s home later, he spoke with the officers, broughtonly if the arrestee was “unsecured and within reaching out some of the stolen items, and volunteered the locationdistance of the passenger compartment at the time of where others could be found. None of his family mem-the search,” or if it was “reasonable to believe evidence bers were home at the time.relevant to the crime of arrest might be found in the The state court affirmed the denial of the juvenile’svehicle.”24 Davis relied on Gant, arguing that the search motion to suppress, wherein he claimed that the failure toafter his arrest violated the Fourth Amendment and, Mirandize him meant his confession and statements couldtherefore, that the gun recovered from his jacket should not be used, and held that J.D.B.’s age was not relevant tohave been suppressed. the determination whether he was in police custody. Dealing with Davis’s appeal, the Eleventh Circuit In a 5–4 opinion authored by Justice Sotomayor, theheld that, while the search was unlawful under Gant, the Supreme Court reversed, finding that a minor’s age couldexclusionary rule did not apply “when the police conduct be relevant in determining whether he was “in custody”a search in objectively reasonable reliance on our well- for Miranda purposes, as custodial police interrogationsettled precedent, even if that precedent is subsequently entailed “inherently compelling pressures,” and minorsoverturned.”25 In 2007, when the search was done, it was tended to be more vulnerable or susceptible to outsidea permissible search, but a Supreme Court decision like pressures than adults.29 In some circumstances, a child’sGant that “constru[es] the Fourth Amendment [must] be age would have affected how a reasonable person in theapplied retroactively to all convictions that [are] not yet suspect’s position would perceive his or her freedom tofinal at the time the decision was rendered.”26 A good-faith leave. So long as the child’s age was known to the officer,exception to the exclusionary rule applied when the police or would have been objectively apparent to a reasonablehad reasonably relied on clear and well-settled precedent. officer, including age in the custody analysis was consis- On appeal, in a 7–2 vote, the Supreme Court affirmed: tent with the Miranda test’s objective nature. This didsearches conducted in objectively reasonable reliance on not mean that a child’s age would be a determinative, orbinding appellate precedent were not subject to the exclu- even a significant, factor in every case, but it was a realitysionary rule. The rule’s “sole purpose, [the Court had] that courts could not ignore.repeatedly held, is to deter future Fourth Amendmentviolations,” and these deterrence benefits of exclusion Greenhouse Gas Emissions Public Nuisancevaried based on the culpability of the law enforce- American Electric Power Co., Inc. v. Connecticut, 79ment conduct at issue.27 Here, the search incident to U.S.L.W. 4547, 2011 WL 2437011 (U.S. June 20, 2011).Davis’s arrest followed the Eleventh Circuit’s precedent In a 8–0 ruling, the Court decided that the federal Cleanexactly. Under the existing exclusionary-rule precedents, Air Act displaced a federal common-law cause of action“this acknowledged absence of police culpability dooms that might have existed for a “public nuisance” of contrib-Davis’s claim.”28 uting to global warming by emitting carbon dioxide. The plaintiffs in the case were eight states, New York City,Custodial Detention, Miranda and several nonprofit land trusts, which sued five majorWarnings, and Juveniles electric power companies for being, they alleged, the larg-J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). A est emitters of carbon dioxide in the nation and, as such,child’s age, the Court held, was a relevant factor to contributors to global warming. The plaintiffs furtherconsider in determining whether the child was “in cus- claimed that the defendants’ emissions substantially andtody” for the purposes of a Miranda v. Arizona analysis. unreasonably interfered with public rights, in violation ofThe appeal concerned a ruling by the Supreme Court of the federal common law of interstate nuisance, or, in theNorth Carolina in which the court held that a 13-year- alternative, of state tort law. They sought a decree settingold student, being questioned by police at his middle carbon-dioxide emissions for each defendant at an initialschool about a burglary and theft, was not in custody cap, to be further reduced annually. The lawsuits hereand was not entitled to Miranda protections as applied began “well before” the Environmental Protection Agencyto juveniles. J.D.B., the juvenile, had been seen close to (EPA) initiated efforts to regulate greenhouse gases.30a residence that had been broken into and had been seen The district court dismissed the suits as presentingat school with a camera (one that turned out to be stolen nonjusticiable political questions, but the Second Circuitfrom the home). When police came to speak to him the reversed, finding the suits were not barred by the politi-same day, he was taken into a room with a police officer, cal question doctrine, that the plaintiffs had adequatelya school official, a school resource officer, and an intern. alleged Article III standing, and, on the merits, that theHe was not given Miranda warnings or given the chance plaintiffs had stated a claim under the “federal commonState & Local Law News, Volume 35, Number 1, Fall 2011 11
law of nuisance,” which claim was not displaced by the Shortened Permitting TimeClean Air Act.31 The extensive studies and investigations leading to The Supreme Court reversed, concluding that the implementation of the Ocean SAMP resulted in theClean Air Act and the EPA action authorized by the collection of a great deal of data about the region, dataact displaced any federal common-law right that private that for the most part has been accepted by CRMC andcitizens (the land trusts), the states, or political subdivi- can provide substantial help in defining alternatives andsions may have previously had to seek abatement of carbon evaluating sites in the permitting process. Interestingly,dioxide emissions from fossil-fuel fired power plants.32 approximately $3 million of the cost of the work behindThe Court, however, left open the possibility of state-law the Ocean SAMP was paid for by a prospective offshoreclaims.33 The Court rejected the plaintiffs’ argument, and alternative energy developer, which may have concludedthe Second Circuit’s holding, that the federal common that a regulatory process based on detailed scientific andlaw was not displaced until the EPA actually exercised its environmental studies could actually save it and otherregulatory authority by setting emissions standards for the developers considerable time and money in the permit-defendants’ plants. The “critical point” was that Congress ting process.had delegated to the EPA the authority on whether and The state believes that the time for procuring a leasehow to regulate carbon-dioxide emissions from power from the primary federal regulator for activities in theplants, and it was the delegation, not the exercise of that Ocean SAMP region will fall from 10 years to two years.power, which displaced federal common law.34 Becausenone of the parties had briefed preemption or otherwise What Is Ocean SAMP’s Role in Coastal Zoneaddressed the availability of a claim under state nuisance Management?law, the matter was left for consideration on remand. As approved by the CRMC and by NOAA, the Ocean SAMP constitutes a programmatic change to RhodeEndnotes Island’s Coastal Resources Management Program, gov- 1. The rulings in Nevada Comm’n on Ethics v. Carrigan and Borough of Duryea v.Guarnieri are reviewed in Robert H. Thomas, Local Government and the First Amend- erning activities in Rhode Island waters.ment at the Supreme Court: Legislative Voting as “Speech” and Union Grievances as “Peti- That being said, much of the SAMP region is in fed-tions,” at 1, in this issue. 2. McComish v. Brewer, No. CV-08-1550-PHX-ROS, 2010 WL 2292213 (D. eral waters. Accordingly, CRMC will formally requestAriz. Jan. 20, 2010). “a geographic boundary expansion to its federal consis- 3. McComish v. Brennett, 611 F.3d 510, 513 (9th Cir. 2010). 4. 2011 WL 2518813, *6 (U.S. June 27, 2011). tency boundary by documenting in advance that certain 5. 554 U.S. 724 (2008). licenses, permits, leases, and so on, will have a foresee- 6. 2011 WL 2518813 at *11. 7. Id. able effect on the state’s coastal zone.”2 8. Id. As of this writing, the matter is before federal agencies 9. Id. at *12. 10. Id. at *17 (citing Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, for comment before formal application to NOAA, and904–05 (2010)). the state anticipates it could have approval by autumn of 11. Id. at *18, *19. 12. Id. at *13. this year, given that CRMC staff have been working on 13. Cal. Civ. Code Ann. §§ 1746–1746.5 (West 2009). this program and consulting with federal regulators over 14. 2011 WL 2518809, *4 (U.S. June 27, 2011). 15. Id. at *5. the past several years. 16. 130 S. Ct. 1577 (2010). The importance of federal approval is that it would 17. 2011 WL 2518809 at *4. 18. Id. at *7. make the Ocean SAMP policies enforceable components 19. Id. at *8. of Rhode Island’s coastal management program for pur- 20. Id. at *10. 21. Id. at *6 n.4. poses of the federal consistency program under the fed- 22. 453 U.S. 454 (1981). eral Coastal Zone Management Act.3 This would effec- 23. 129 S. Ct. 1710 (2009). 24. Id. at 1719. tively give Rhode Island significant approval rights over 25. 598 F.3d 1259, 1264 (11th Cir. 2010). specified activities in the Ocean SAMP region requiring 26. Id. at 1263. 27. 131 S. Ct. 2419, 2426 (2011). federal permits. (The rights of a state vary depending on 28. Id. at 2428. whether the federal permit is awarded to a federal entity 29. 131 S. Ct. 2394, 2410, 2413 (2011). 30. 2011 WL 2437011 at *5. itself or to a nonfederal actor, with states effectively hav- 31. 582 F.3d 309 (2d Cir. 2009). ing a type of veto over actions of the nonfederal actor that 32. 2011 WL 2437011 at *9. 33. Id. at *12. are inconsistent with a state’s enforceable coastal zone 34. Id. at *10. management policies.) Rhode Island municipalities also can be heard in this process as to matters of importance to their localities byIs Zoning Coming to an Ocean Near You? making their views known to CRMC during the federal(continued from page 8) consistency review process. In essence, Rhode Island would be extending itsmay be located elsewhere in Rhode Island state waters enforceable policies into federal waters over the Oceanin the region if it would not have a significant adverse SAMP region. This will provide a significant extra mea-impact on natural resources or human use of the region.1 sure of protection to Rhode Island in guarding its coastal12 State & Local Law News, Volume 35, Number 1, Fall 2011
resources and may well be a blueprint other states wish distinguished Pickering v. Board of Education,14 because thatto study. case involved balancing the First Amendment rights of a government employee—a public school teacher—againstEndnotes the state’s interest in good government, and Carrigan, as an 1. Section 1160.1.1. 2. CRMC Press Release, October 19, 2010. elected councilman, was not in the same position as a run- 3. 16 U.S.C. 1451 et seq. of-the-mill government employee.15 The court held that, although employed by the state, elected officials are directly responsible to the voters and thus their rights are more protected by the First Amendment from state regulationLocal Government and the First than other government employees.16 The court rejected theAmendment Pickering balancing test, reasoning that because Carrigan’s(continued from page 1) vote was speech—and more importantly was highly pro- After consultation with the city attorney, Carrigan did tected political speech—the ethics statute must be reviewednot seek an advisory opinion from the Nevada Commission with strict scrutiny, the most exacting judicial test. “Stricton Ethics, but instead disclosed his relationship with the scrutiny” most often means “fatal scrutiny” since it shiftsLazy 8’s consultant and voted on the development pro- the burden to the state to show that regulation of speechposal. The council denied the casino’s application by a 5–4 both supports a compelling governmental interest and isvote, with Carrigan casting one of the four minority votes narrowly drawn to further that interest while restrictingfor approval. First Amendment rights as little as possible.17 There was no In response to complaints received about Carrigan’s dispute that the state’s interest in protecting the integrity offailure to recuse, the Commission on Ethics investigated the legislative process was compelling.18 Thus, the sole issueand concluded that he should not have voted on the Lazy was whether the catchall provision was narrowly tailored.8 matter. The Commission determined that Carrigan con- The court concluded the definition of a “commitment in asidered his campaign manager’s assistance “instrumental” private capacity” was overbroad, because there was no limi-to his electoral victories, and that his relationship with the tation on what relationships it could encompass, and thusconsultant was a close one because he confided to him “on “has a chilling effect on the exercise of protected speech,”19matters where he would not confide in his own sibling.”5 because it “does not inform or guide public officers as toAlthough his relationship with the campaign manager did what relationships require recusal.”20not fall under any of the relationships detailed in subsec-tions (a) through (d) of the ethics statute, the Commission B. Supreme Court: A Legislative Voteconcluded the relationship was such that a reasonable person Isn’t “Saying” Anythingwould view it as “substantially similar” to those relationships The U.S. Supreme Court concluded that legislative voting isand that recusal was required under subsection (e).6 “In an act of governance and is not a legislator’s “speech.” Justiceother words, the Commission found that Carrigan should Scalia, writing for Chief Justice Roberts, and Justices Ken-have known that his relationship with [the consultant] fell nedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan,within the catch-all definition and prevented him from vot- concluded that a legislator’s vote is not speech because a citying on . . . the Lazy 8 project.”7 The Commission censured council member is not “saying” anything by voting, and be-Carrigan, but imposed no penalty because it concluded that cause a vote is not speech, it may be regulated, or in this casethe violation was not willful.8 prohibited. Thus, in accordance with the Nevada statute, The Nevada trial court affirmed the Commission’s con- Carrigan should have recused himself from voting on theclusion, but the Nevada Supreme Court reversed, conclud- casino’s development proposal.ing that an official’s legislative vote is “speech” and thereforereviewed using strict scrutiny. Applying this standard, the 1. What Would the Founders Do? The opinion beganNevada Supreme Court found that the catchall provision with the tautology that the First Amendment prohibits lawsin the Ethics in Government statute was not narrowly tai- abridging the freedom of speech, “[b]ut the Amendmentlored and was facially unconstitutional. The majority held has no application when what is restricted is not speech.”21that “voting by an elected public officer on public issues is The Court agreed with the Nevada Supreme Court’s con-protected speech under the First Amendment.”9 The court clusion that voting by elected officials is a “core legislativerelied on a Fifth Circuit case, Colson v. Grohman,10 which function,” but reached the opposite conclusion about whatheld that “[t]here is no question that political expression that means. Justice Scalia’s opinion characterizes voting assuch as a [city council member’s] positions and votes on City only action with little or no expressive content, at least notmatters is protected speech under the First Amendment.”11 one that a legislator is entitled to claim, because when vot-The Nevada Supreme Court majority adopted Colson’s ratio- ing, government officials are acting as trustees for constitu-nale without detailed analysis, following a two-step logic. ents, not exercising personal speech rights:Because voting on legislative matters is a “core legislative But how can it be that restrictions upon legislators’ votingfunction,”12 the court concluded that “it follows that voting are not restrictions upon legislators’ protected speech? Theserves an important role in political speech.”13 The court answer is that a legislator’s vote is the commitment of hisState & Local Law News, Volume 35, Number 1, Fall 2011 13
apportioned share of the legislature’s power to the passage took the Scarlett O’Hara approach (“I’ll think about that or defeat of a particular proposal. The legislative power thus tomorrow”), a recusal requirement might implicate speech committed is not personal to the legislator but belongs to concerns if it is not content-neutral like Nevada’s, and it the people; the legislator has no personal right to it.22 might implicate associational concerns if it penalizes anThe Court held it was “dispositive” that legislative recusal official’s relationships, and it might be unconstitutional ifrules have been around since the birth of the republic, “and it is so vague that no reasonable official could understandsuch rules have been commonplace for over 200 years.”23 what it requires. But despite the absence of a sweeping rul-The opinion supported that assertion by noting the U.S. ing, government officials should read the Court’s messageSenate and House of Representatives adopted recusal rules clearly: political power derives from the people and when“within 15 years of the founding.”24 a “legislator casts his vote, [he is acting] ‘as trustee for his The Court also seemed swayed by the fact that “virtu- constituents, not as a prerogative of personal power.’”31ally every State has enacted some type of recusal law, manyof which, not unlike Nevada’s, require public officials to III. Guarnieri: Government Employee Speech Testabstain from voting on all matters presenting a conflict of Applied to Petitionsinterest.”25 Reviewing the Nevada ethics law under the strict In Carrigan, the Court found it unnecessary to delve into thescrutiny standard would also subject those laws to serious levels of First Amendment protection available when a leg-challenge, and the Court appears to have been convinced islator is voting, or whether the balancing test that governsthat there is no need to do so. government employee speech applies to that situation. One week later, however, in Borough of Duryea v. Guarnieri,32 2. Restrictions on Legislative Advocacy. The Court the Court applied the Pickering-Connick-Garcetti test to aalso concluded that recusal laws prohibiting an official from government employee’s union grievance, concluding that“advocating the passage or failure” of legislation in addition it would be protected by the First Amendment’s Petitionto requiring recusal from voting do not violate free speech Clause if it involved a matter of public concern.rights, even though they expressly prohibit speech: If Carrigan was constitutionally excluded from voting, his A. Union Grievances and a Circuit Split exclusion from advocat[ing] at the legislative session was a That case began when Charles Guarnieri, the police chief of reasonable time, place and manner limitation.26 the borough, filed a union grievance challenging his firing. The arbitrator concluded that he “engaged in misconduct,Justice Kennedy concurred to note that ethics laws might including ‘attempting to intimidate Council members,’” butimpose burdens on speech rights if they restrict actions that the borough council wrongly terminated him because itother than voting.27 This indicates that there may be other “committed procedural errors in connection with the termi-First Amendment problems with ethics laws restricting nation.”33 He was reinstated, and when he returned to work,conduct other than an official’s vote. the council issued written “directives” explaining “what was The Court’s opinion left open two questions. First, going to be expected of him upon his return.”34 For exam-whether the catchall provision impermissibly burdened ple, he was told he could not work overtime without permis-Carrigan’s right to political association by penaliz- sion, could only use the police car for official business, anding him for his relationship with his campaign man- was told that the municipal building is a no smoking area.ager. Second, whether as a matter of due process, the Because he did not have “a warm welcome feeling,” he filedcatchall provision was too vague to provide notice of a second grievance, which was sustained, Guarnieri insti-what relationships will result in recusal. The Court tuted a federal civil rights action asserting that his right toaddressed neither, concluding that Carrigan waived them. petition the government for redress of grievances had been Justice Alito concurred in part.He concluded that legislative infringed on by the council’s directives. After the councilvoting is, in fact, speech. He concurred in the judgment, how- turned down his request for $338 in overtime, he amendedever, because ethics rules are reasonable “time, place, and man- his complaint to allege that his lawsuit was a petition, “andner” speech regulations because “the Court demonstrates that that the denial of overtime constituted retaliation for hislegislative recusal rules were not regarded during the found- having filed the lawsuit.”35ing era as impermissible restrictions on freedom of speech.”28 The jury awarded Guarnieri $45,000 in compensatory damages and $24,000 in punitive damages for the direc-C. Carrigan Talking Points tives, and $358 in compensatory damages and $28,000 inHaving concluded that Carrigan’s vote was not speech, punitive damages for the overtime claim. The Third Circuitthe Court, of course, did not consider whether it would be affirmed the compensatory damage awards, and concludedsubject to the same limited First Amendment protections that Guarnieri’s union grievance was protected activity evenas speech by other government employees as in Pickering, if it “concerns a matter of solely private concern.”36Garcetti v. Ceballos,29 and Connick v. Meyers,30 whichtogether subject restrictions on government employee B. Supreme Court: Petitions Are Like Speechspeech to varying levels of judicial scrutiny depending In an opinion authored by Justice Kennedy and joined byon the content of the speech. Even though the Court the Chief Justice and Justices Ginsburg, Breyer, Alito,14 State & Local Law News, Volume 35, Number 1, Fall 2011