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Supreme Court sides with states--again: once more states won more than they lost in cases before the country's highest court.

The states continued a winning record in the U.S. Supreme court again this year. The justices upheld the principle that lawmakers can aid parents who choose private or parochial schools for their children. They opened the door somewhat for states to regulate HMOs and, in some instances, to force them to pay for a patient's needed medical treatment or drug therapy. And they expanded the states' shield of sovereign immunity to include administrative hearings by federal agencies.

State officials also gained more leeway in confining and treating convicted sex criminals. And in a rare setback for the property rights movement, the high court ruled that state and local agencies cannot be forced to pay damages for imposing a temporary ban on development.

This flurry of state friendly rulings is not a new trend, of course. Since President Reagan chose him as chief justice in 1986, William H. Rehnquist has been a steady advocate of giving more authority to state and local elected officials. At the same time, he has pressed for restricting the power of federal judges over schools, prisons and state criminal prosecutions. He has even revived the constitutional barriers on the power of congress to regulate matters that fall within the domain of the states.

None of these changes have come quickly, however, and the June 27 ruling upholding Ohio's school vouchers law marked the culmination of a nearly 30-year effort by Rehnquist to clear the way for a school choice law. Associate Justice Rehnquist was a rookie conservative on the Supreme court in 1973 when his colleagues voted to strike down a New York state tuition tax credit law for parents who sent their children to private or parochial schools. Then, the strict separation of church and state doctrine was in vogue, and the court majority said state aid would have the obvious "effect" of subsidizing religious teaching, a clear violation of the First Amendment's ban on laws "respecting an establishment of religion.

Rehnquist disagreed profoundly. He described Thomas Jefferson's comment that the constitution was intended to erect a "wall of separation" between church and state as a "misleading metaphor" that should be ignored.

Instead, he said, the Framers of the constitution prohibited only the official sponsorship of a church and government favoritism toward a particular religion. In his dissent, he described the New York tax credit as a measure of a "benevolent neutrality" that was intended to promote education, not religion. Moreover, it offered parents a true choice among an array of educational options.

This year, Rehnquist finally found a 5-4 majority to write his view into law. Low-income parents in Cleveland may receive a voucher of up to $2,250 per year to pay for a child's tuition at a private school. More than 96 percent of the parents who took the money used it to send their children to church-related schools. Citing this fact, a U.S. appeals court struck down the Ohio law on the grounds that it had the clear "effect" of subsidizing religious education.

But the chief justice said that a state aid program of "true private choice" does not amount to an unconstitutional establishment of religion, regardless of how or where the money is spent.

"The Ohio program is neutral in all aspects toward religion. It is part of a general and multifaceted undertaking by the state of Ohio to provide educational opportunities to the children of a failed school district," he wrote. (Ohio's state school superintendent Susan Tave Zelman had appealed after the lower court ruled in favor of the lawsuit brought on behalf of a taxpayer named Doris Simmons-Harris, so the Supreme Court case was known was Zelman vs. Simmons-Harris.)

Although Ohio's voucher program was targeted at the Cleveland schools, Rehnquist's opinion suggests that a statewide program of vouchers or tuition tax credits would be upheld, as well.

In the past, Justice Sandra Day O'Connor has balked at state aid programs that directly fund a religious school, but she has readily upheld programs that send the money to parents on the theory that no one could say this amounts to the government endorsing religion. O'Connor signed Rehnquist's opinion, as did Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The Court's opinion also clears away most legal doubts about President Bush's "faith-based initiative." The president wants the government to support and encourage religious charities that offer counseling for drug abusers, prisoners and troubled teens. Critics have said these programs would be unconstitutional if they have the effect of using government money to pay for religious teaching, but Rehnquist's ruling casts that claim aside.

It is not clear that the Court's ruling will spur a political drive in favor of vouchers or tuition tax credits. The National Education Association and the American Federation of Teachers, which fought the Ohio law in court, say vouchers remain a bad idea and a drain on public schools. Voters in California, Michigan and Washington have rejected voucher plans in recent elections. Nonetheless, the Rehnquist ruling puts the fate of the school choice plans into the political arena rather than in the courts.

COURT STEPS IN ON HMOs

A year ago, it looked as though the political forces in Congress would deal with public complaints about HMOs and managed health care by passing a Patient's Bill of Rights. But that effort stalled over the question of whether to permit big-money lawsuits against the providers of managed care.

With federal legislation on hold, the Supreme Court in June upheld a middle-ground reform that has been embraced in most of the states. Under these so-called independent review laws, patients are entitled to a second opinion from outside doctors if their managed care provider denies them a medical treatment or a drug benefit.

Typically, these health providers promise to provide necessary medical care, but who decides what is necessary for a patient: the HMO or a medical professional?

The issue came before the high court in the case of a suburban Chicago woman named Debra Moran. Her husband's HMO refused to pay for costly nerve surgery on her shoulder, even though her physician said she needed the operation. Moran went ahead with the surgery, paid the $95,000 cost and appealed her claim to the Illinois review board, which in turn asked a specialist at the Johns Hopkins Medical Center to review her case. He agreed Moran's surgery was necessary and the state board ordered the Rush Prudential HMO to pay for it.

But the health care industry decided to challenge these state laws on the grounds that they conflicted with the federal law that regulates employee benefits. In the past, the high court had interpreted the Employee Retirement Income Security Act (ERISA) to sweep aside virtually all state laws that touch on workers' benefits, including health care. This year, the court retreated from that view and upheld the Illinois law on a 5-4 vote, In Rush Prudential HMO vs. Moran, Justice David H. Souter said the states retain their traditional authority to regulate insurance, and the Illinois review law was more akin to insurance regulation than imposing a new benefit requirement on employers. The state's law "provides no new cause of action ... and authorizes no new form of ultimate relief," he said, unlike a law that allows open-ended lawsuits. Souter was joined by Justices John Paul Stevens, O'Connor, Ruth Bader Ginsburg and Stephen G. Breyer.

But the close vote and the narrow ruling signals caution on interpreting this decision.

The justices remain divided on whether states have much leeway to regulate health care. And as if to demonstrate the point, they voted in late June to take up two new cases that test the state's power to regulate HMOs and to force down the costs of prescription drugs.

DEALING WITH SEXUAL PREDATORS

The high court has shown a continuing interest in the states' efforts to deal with sexual predators, and there too the states have been winning narrowly.

Five years ago, the justices upheld in principle the Kansas Sexually Violent Predator Act, one of the new generation of laws that allows officials to confine dangerous sex criminals after they have served their prison sentences. In response, the Kansas courts said that before these people can be confined in a treatment center, prosecutors must show they cannot control themselves and have an unbridled urge to commit sex crimes.

The Supreme Court took up the state's appeal, reversed that decision and set an easier standard. Prosecutors must show that these inmates have only a "serious difficulty" controlling their behavior, the court said in Kansas vs. Crane.

In still another case from Kansas, the Court said state prison officials can force inmates to confess to past sexual offenses as part of a rehabilitation program. "Acceptance of responsibility is the beginning of rehabilitation," said Justice Kennedy. He cited studies showing that these programs are effective and greatly reduce the likelihood that paroled sex criminals will be re-arrested.

Inmates who refuse to participate in the Kansas program lose their privileges and can be sent back to a maximum security facility. Robert Lile, a convicted rapist, challenged the forced confessions as a violation of the Fifth Amendment's ban on compelled self-incrimination, and won a U.S. appeals court ruling in his favor. But the Supreme Court reversed that decision on 5-4 vote in the case of McCune vs. Lile and sided with the state.

In another prison case, the justices made it harder for inmates to sue in federal court. The Prison Litigation Reform Act of 1995 said inmates must take their complaints about "prison conditions" first to a grievance board in the facility. Only after this administrative route has been "exhausted" can they sue in court. However, a U.S. appeals court in New York ruled that a prisoner who suffers a severe beating can sue immediately because this does not concern a prison condition. In March, the Supreme Court unanimously reversed that decision in Porter vs. Nussle and ruled the "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes."

COURT UPHOLDS STATE RIGHTS

In the major federalism decision of the term, the Court said states cannot be hauled before a federal administrative agency to respond to a private complaint. In this case, a cruise ship line had complained to the Federal Maritime Commission when the South Carolina State Ports Authority refused it permission to berth a gambling ship in Charleston. The state said it did not want to encourage gambling, but the ship line said this was unfair and discriminatory because two Carnival Cruise ships that offered gambling were berthed in Charleston.

Without grappling with the merits of this dispute, the high court on a 5-4 vote ruled that the state is shielded from such complaints. "By guarding against encroachments by the federal government on fundamental aspects of state sovereignty, we strive to maintain the balance of power embodied in our Constitution," wrote Justice Thomas in the case of FMC vs. South Carolina.

In the property rights case, the Court shielded state and local agencies from a potential deluge of damage claims. A decade earlier, the Court had said that landowners who are denied all use of their property are entitled to "just compensation" from the government. A case from Lake Tahoe tested whether this rule applied when the government imposed a development moratorium for months or even several years.

In the 1980s, the California-Nevada regional planning agency stopped issuing building permits for lots near the lake, and more than 700 owners joined a lawsuit seeking compensation. But in a 6-3 ruling, the justices described development moratoria as a much needed tool for planning and environmental protection. Property owners are not entitled to money damages for their losses, the Court said in Tahoe-Sierra Preservation Council vs. Tahoe Regional Planning Agency.

STATE LOSSES

The states also suffered three significant losses in the just completed term. First, the court ruled that juries, not judges, must decide the key facts that send a defendant to death, a decision that upset the capital punishment systems in Arizona and eight other states. Two years ago, the Court stressed that the right to a trial by jury is fundamental, and states cannot short-circuit that right by letting judges decide that a defendant is guilty of a more serious offense than the jury found.

Timothy Ring was convicted by a jury of participating in a robbery plot that led to the death of an armored car driver. Under Arizona law, the jury was dismissed, and the judge took over. He held a separate hearing and decided, based on testimony by a coconspirator, that Ring killed the driver. The judge then sentenced Ring to death. The justices reversed his sentence in Ring vs. Arizona and said the defendant had a right to have his ultimate guilt decided by a jury and proven beyond a reasonable doubt.

It is not clear how many inmates will be affected by this decision, however, since the Court did not say whether the ruling is retroactive and applies to old cases.

The justices also ruled that candidates for judgeships have a free-speech right to take stands on controversial issues, a decision that could transform judicial elections in the 39 states that elect some or all of their judges (Republican Party of Minnesota vs. White). For those who are troubled by highly politicized judicial races, the appointed justices had a ready solution: states can stop electing judges and appoint them on merit instead.

Finally, the Court imposed a costly new burden on some states for providing free lawyers in cases involving petty offenses. Indigent people are entitled to a lawyer whenever they "may" face jail time, the high court ruled in the case of Alabama vs. Shelton.

In the past, the justices had said people who will go to jail if convicted are entitled to a lawyer. This year, the Court expanded that right to include those who will almost certainly receive nothing more than a suspended sentence or probation. The 5-4 majority said that since probation can be easily revoked and the defendant sent to jail, he must have a lawyer in the first instance when his guilt or innocence is to be decided.

RELATED ARTICLE: UPCOMING SESSION WILL TEST STATES' POWER

In the fall, the Supreme Court will take up I cases that test the states' power to lower prescription drug costs, alert communities to paroled sex offenders, send serial criminals to prison forever and make cross burning a crime.

The pharmaceutical industry is challenging a Maine law that allows patients to buy drugs at the discount prices offered through the Medicaid program. Its lawyers say this state program regulates out-of-state manufacturers, a violation of the Constitution's guarantee that only the federal government can regulate interstate commerce. If Maine wins, its law is likely to be copied widely (Pharmaceutical Research & Manufacturers of America vs. Concannon).

Meanwhile, the health insurance industry is challenging a Kentucky law that requires HMOs to open their closed networks to "any willing provider" who wants to abide by its terms. Twenty-five states have similar laws that give patients more choices of doctors (Kentucky Assn. of Health Plans vs. Miller).

The "Megan's Laws" are under challenge in two cases. A Connecticut case tests whether states can post the names and addresses of released sex offenders without holding a hearing to prove they remain dangerous (Connecticut vs. Doe). The second, from Alaska, will determine whether these laws can be applied to criminals whose offenses pre-dated the laws (Otte vs. Doe).

California's "Three Strikes and You're Out" may be the nation's most stringent because it allows a non-violent petty offense to be counted as the third strike that triggers a life prison term. The U.S. 9th Circuit Court of Appeals said this is cruel and unusual punishment in the case of a shoplifter who stole several videotapes from a K-Mart. The Court will hear the state's appeal in Lockyer vs. Andrade.

A Nevada case will decide whether the doctrine of "state sovereign immunity" shields state employers from the federal Family and Medical Leave Act and its requirement that workers be granted up to 12 weeks of unpaid leave for family emergencies (Nevada vs. Hibbs). And a Virginia case will decide whether states can make it a crime to burn a cross or display a Nazi swastika. A state court said these laws violate the First Amendment's guarantee of freedom of speech (Virginia vs. Black).

David G. Savage, a frequent contributor to State Legislatures magazine, covers the Supreme Court for the Los Angeles Times.
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Author:Savage, David G.
Publication:State Legislatures
Geographic Code:1USA
Date:Sep 1, 2002
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