The independent-state-legislature theory for congressional maps and liability for cities under the ADA

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Petitions of the week
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This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the Constitution permits state courts to play a role in congressional redistricting and whether plaintiffs can hold cities liable when city employees violate federal protections for people with disabilities.

North Carolina legislators asks justices to hear independent-state-legislature theory on the merits

In Moore v. Harper, North Carolina Representative Timothy Moore asks the Supreme Court to consider the independent-state-legislature theory that the Constitution gives state legislatures, not state courts, the power to regulate federal elections in their states. Moore emphasizes that the elections clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Notably, and unlike other constitutional provisions, Moore maintains, the clause does not refer to the state itself, but an organ of government.

In this case, the North Carolina General Assembly last November enacted a new map for congressional elections in response to the 2020 U.S. Census data. Rebecca Harper and other challengers sued in state court to prevent the new map from taking effect, arguing that the map violated various provisions of the North Carolina Constitution and represented an unlawful partisan gerrymander. On Feb. 4, 2022, the North Carolina Supreme Court enjoined the new map, stating that even though the state legislature “has the duty to apportion North Carolina’s congressional … districts,” the legislature’s “exercise of this power is subject to limitations imposed by other [state] constitutional provisions,” and “the state judiciary … has the responsibility to protect the state constitutional rights of the citizens.” The court further concluded that the map was an unconstitutional partisan gerrymander. On remand, the North Carolina Superior Court on Feb. 23, 2022, then issued an order adopting a different congressional map proposed by three court-appointed experts.

Moore and other state legislators then filed an emergency application asking the U.S. Supreme Court to stay the North Carolina Supreme Court’s order invalidating the General Assembly’s map and to stay the North Carolina Superior Court’s order adopting the replacement map. The justices denied this request. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented, calling the independent-state-legislature theory “an exceptionally important and recurring question of constitutional law” and indicating that “further review of the judgment below may be warranted once a petition for a writ of certiorari is filed.” Justice Brett Kavanaugh, though concurring in the decision to deny the stay, also stated that “if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari … [and] carefully consider and decide the issue next Term after full briefing and oral argument.” Under the “rule of four,” the vote of four justices is sufficient to grant Moore’s petition. For the time being, the map adopted by the North Carolina Superior Court remains operative for 2022 elections.

Liability for cities after employee violations of the federal protections for persons with disabilities

In Jones v. City of Detroit, Michigan, Baxter Jones asks the justices to consider whether public entities are liable for their employees’ violations of federal protections for persons with disabilities. Jones claims that in 2014, Detroit police officers arrested him for disorderly conduct during a protest of citywide residential water shutoffs. The officers then drove Jones, who uses a wheelchair for mobility, in the back of a van for five miles without adequate headroom or safety restraints, ultimately resulting in significant injuries to his neck. Detroit never charged or prosecuted Jones for disorderly conduct or any other crime.

Jones sued Detroit in federal district court under the Americans with Disabilities Act and the Rehabilitation Act because of the officers’ failure to accommodate his disability. The U.S. Court of Appeals for the 6th Circuit affirmed the district court’s dismissal of Jones’ claims on the ground that the city cannot be vicariously liable for its employees’ actions. The 6th Circuit reached this conclusion by analogy to Title IX of the Education Amendments of 1972, a model of sorts for later civil rights statutes, in which vicarious liability is not available. In his petition, Jones maintains that this decision conflicts with decisions of three other circuits. (In a separate opinion in July 2020, the 6th Circuit ruled that the officers were entitled to qualified immunity, and the officers are not respondents in Baxter’s petition.)

These and other petitions of the week are below:

Talasek v. National Oilwell Varco, L.P.
21-1266
Issue: Whether the beneficiary of an employee benefits plan can bring an equitable estoppel claim under the Employee Retirement Income Security Act based on misrepresentations at variance with the terms of the plan.

MOAC Mall Holdings LLC v. Transform Holdco LLC
21-1270
Issue: Whether Bankruptcy Code Section 363(m) limits the appellate courts’ jurisdiction over any sale order or order deemed “integral” to a sale order, such that it is not subject to waiver, and even when a remedy could be fashioned that does not affect the validity of the sale.

Moore v. Harper
21-1271
Issue: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

Jones v. City of Detroit, Michigan
21-1292
Issue: Whether a public entity can be vicariously liable under a theory of respondeat superior for its employees’ violations of Title II of the Americans with Disabilities Act or the Rehabilitation Act.



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