WHAT AN AUTO ACCIDENT DECISION TEACHES ABOUT FEDERALISM

By MICHAEL C. DORF

Monday, Oct. 15, 2001

Throughout American history, major military actions and domestic upheavals have tended to result in a strengthening of the federal government. When the Constitution replaced the Articles of Confederation, the centrifugal forces that rendered the nascent United States unable to meet its basic obligations were reined in. Federal power greatly expanded again after the Civil War, the Great Depression, the Second World War, and the 1960s Civil Rights Movement.

Indeed, so complete was the expansion that, with minor exceptions, from the Second World War through the early 1990s, the U.S. Supreme Court imposed no substantial restrictions on Congress's ability to pass laws that directly regulated or displaced the authority of the states.

For roughly a decade, however, the Rehnquist Court has been repeatedly invoking the Tenth Amendment and other principles of federalism to protect states' rights. But now, in the aftermath of September 11, a debate has begun anew over whether states' rights should once again be cast aside.

Guillen v. Pierce County, a recent decision of the Supreme Court of the State of Washington, suggests that rumors of the demise of federalism may be premature. On September 13, that court struck down a federal statute as an unconstitutional infringement of states' rights.

The Statute At Issue in Guillen

The federal statute at issue governs the admission of evidence in lawsuits involving traffic accidents. Since many would see fender-benders as a local concern, the statute is perhaps a symbol of how far federal power had been permitted to extend. At the same time, the Washington Supreme Court's decision indicates that federal power is still not all-encompassing.

For many years, Congress has provided states and localities with money to perform repairs and improvements of railroad crossings, highways, and secondary roads. States that wish to receive federal funds apply to the Department of Transportation. Though generous, these sums of money come with strings attached.

One example is a section of the U.S. Code that bars the use in civil lawsuits of reports, surveys, and other data "compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement" of a project for which a state seeks federal funds. The bar applies regardless of whether the case is based on state or federal law and regardless of whether it is brought in state or federal court.

The rationale for the statute is straightforward. In order to decide where federal highway funds can best be used to increase safety, the Department of Transportation needs information about which intersections and railroad crossings are the most dangerous. But there would be a disincentive for states and localities to compile such information if private plaintiffs could then use it in litigation against them. To eliminate this disincentive, the statute makes the information unavailable in lawsuits in state and federal court.

The Scope of the Federal Statute

In the Guillen case, the Washington Supreme Court faced two questions: First, what is the scope of the statute? And second, is the statute a constitutionally valid exercise of Congressional power?

In answering the first question, the Washington Supreme Court noted that the statute was broadened in 1995 to refer not only to reports and other data that are "compiled," but also those that are "collected."

The amendment responded to a number of state court rulings narrowly construing the statute as applying only to information specifically gathered for the purpose of a federal grant — and apparently was meant to make clear that the statute was broader than these rulings indicated. Accordingly, the Washington Supreme Court ruled that the statute covers raw data (such as police reports) that are included in a federal grant application. Even if the data were originally gathered for completely different purposes, the Court reasoned, they were still "collected" or "compiled" within the meaning of the statute.

The Import of Giving the Statute Broad Scope

What does this technical statute mean in practice? An example will clarify its application.

Suppose that between 1995 and 2000, there were twenty automobile collisions at the intersection of Broadway and Main Street in Gotham City, each resulting in a police report. Suppose further, that in 2000, these reports were forwarded to the Department of Transportation as part of a proposal to get federal funds to alter the intersection so as to make it safer — by, for example, installing a traffic light.

Finally, suppose that in 2001, Jane Doe is injured in an accident at that very intersection. She sues Gotham City, complaining that she was injured because the city was negligent in failing to install a traffic light there. And she seeks access to the police reports of prior accidents, to help show that the intersection was dangerous and that the city knew it. Will she get the reports?

Under the Washington Supreme Court's reading of the federal statute, Doe is out of luck — even though the police reports were originally compiled for purely local law enforcement purposes. Because they were subsequently "collected" for purposes of a federal grant application, they cannot be used in litigation.

The Constitutionality of the Federal Statute

Having read the statute broadly, the Washington Supreme Court went on to hold that in enacting it, Congress had gone too far. The statute, the court held, is valid insofar as it governs data specifically collected for federal purposes. However, the court said, the 1995 expansion of the statute was invalid. Congress cannot prescribe a rule barring evidence gathered by state officials for state purposes, when state law governs the dispute tried in state court.

The municipal defendants in Guillen had argued that the statute was a valid exercise of either Congress's power to regulate interstate commerce, or its power to spend money for the public welfare. But the court rejected both arguments.

The court cited recent decisions of the United States Supreme Court invalidating the Gun Free School Zones Act and similarly invalidating the civil remedy provision of the Violence Against Women Act. Relying on these decisions, the court held that the power to regulate interstate commerce does not extend to local accident data collection.

The court acknowledged that Congress has some latitude under the Commerce Clause to regulate matters that do not directly touch on interstate commerce, as long as the rules are at least "an integral part of the regulatory scheme." But, concluded the court, the statute, as applied to raw data collected for local law enforcement purposes, is not such a rule.

What about Congress's power to spend money for the public welfare? The court held that the statute was not part of the bargain to which Washington State and its sub-divisions agreed when they submitted their applications for federal funds. Rather, it was too far removed from the purposes of the federal grant program to fall within the spending power.

An Invitation to the U.S. Supreme Court

The Washington Supreme Court's ruling with respect to the spending power may seem commonsensical. In actuality, it marks a potential break with past precedent.

The leading case is the 1987 U.S. Supreme Court ruling in South Dakota v. Dole. Dole indicates that there are few limits on the strings Congress can attach to federal funds.

Like Guillen, Dole involved federal highway funds. In Dole, the Supreme Court upheld a condition requiring states that received such funds to set their minimum drinking age at 21. The link to the spending power? The drinking age addresses the problem of drunk driving, which affects driving safety, which is the general aim of the federally funded programs.

The exact same link could be claimed with respect to the federal statute at issue in Guillen. The statute governs admissibility of data in traffic accident cases, which affects driving safety, which is the general aim of the federally funded programs.

Does Dole mean Guillen is wrongly decided, then — particularly given that state courts interpreting federal law are bound by the U.S. Supreme Court? The answer may be yes.

Indeed, even the Washington Supreme Court itself seemed to realize that its Guillen decision was questionable. Practically inviting reversal, the court noted that "[i]f this state court has misconstrued the United States Constitution's limitations . . . we are confident that the United States Supreme Court will so instruct."

State supreme court decisions on questions of federal law may be reviewed by the U.S. Supreme Court, so the Washington Supreme Court may well be correct in anticipating that it will not have the last word on this subject.

Federalism Sometimes Makes Strange Bedfellows

Dole was decided in 1987, however, and most of the Supreme Court's more recent federalism decisions have vindicated the interests of states, as opposed to those of the federal government or individuals.

For example, earlier this year, in Board of Trustees of the University of Alabama v. Garrett the Court held that Alabama was constitutionally immune from having to pay damages, even though it had violated the Americans with Disabilities Act by demoting a director of nursing because of her battle with breast cancer. The state won; Congress, which had passed the ADA, lost — and so, of course, did the nursing director plaintiff.

Yet Guillen is different from most federalism cases. There, a victory for states' rights meant a victory, too, for individual plaintiffs — those who, like our hypothetical Jane Doe, were injured or killed in traffic accidents.

Guillen is also unusual because, there, a victory for states' rights was also a victory for a liberal position — the position that discovery and evidence rules should be broad, so that tort plaintiffs can succeed in their cases. (The contrary, conservative position, would endorse "tort reform" measures, including restrictive evidence rules, aimed at curbing lawsuits.)

In summary, Guillen is a strange mixture: conservative in that it is pro-states' rights, but also liberal in that it is pro-plaintiff and pro-tort suits. Faced with this mix, how is the U.S. Supreme Court likely to rule if it decides to review Guillen? The answer to that question depends on whether the Justices put legal principle before ideology.

Numerous critics have observed how in Bush v. Gore, the very Justices who usually support states' rights were willing to override a state supreme court decision on the basis of equal protection arguments that they would have likely rejected in other contexts.

If it reaches the Court and is reversed, Guillen could turn out to be a Bush v. Gore in miniature — with conservative Justices abandoning states' rights when they assist "litigious" plaintiffs in tort suits against the government, and thus providing more fuel to the cynics. On the other hand, an affirmance of Guillen could support the view that the states' rights Justices believe in states' rights as a matter of principle, not just a matter of convenience.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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