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2001 Term, Number 15 / April 29, 2002

Today the Supreme Court granted certiorari in one case of potential interest to the business community. Amicus briefs in support of the petitioner are due on Thursday, June 13, 2002, and amicus briefs in support of the respondents are due on Monday, July 15, 2002. Any questions about this case should be directed to Miriam Nemetz (202-263-3253) in our Washington office.

Federal Highway Safety Programs — Privilege For Safety Information Compiled By Local Governments — Constitutionality. A federal statute, 23 U.S.C. § 409, protects from discovery or admission into evidence in federal or state court proceedings documents "compiled or collected" by a local government "for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings" pursuant to certain federal highway safety programs. The Supreme Court granted certiorari in Pierce County v. Guillen, No. 01-1229, to address: (1) whether Section 409 is constitutional; and (2) whether private plaintiffs have standing to challenge a statute on federalism grounds when the state has expressly approved and accepted the benefits of the statute in question.

Respondents, the survivors of an auto accident victim, filed a wrongful death suit against Pierce County in Washington state court, contending that the County had negligently failed to provide a traffic light at the intersection where the accident occurred. The respondents sought in discovery documents concerning the intersection's accident history. The County, which had recently compiled that information in connection with an application for federal "hazard elimination" funds, asserted that the documents were shielded from disclosure by Section 409. The trial court ordered disclosure of most of the documents, and the County appealed.

The Court of Appeals for the State of Washington affirmed. See Guillen v. Pierce County, 982 P.2d 123 (Wash. Ct. App. 1999). The court concluded that Section 409 covered only documents actually in the hands of the road department, but did not shield from disclosure copies of preexisting documents, such as accident reports, that remained in the custody of other agencies. Id. at 129. Accordingly, it ruled that the district court had properly ordered disclosure of documents held by the sheriff's department. Although it recognized that the parties had not raised the issue, the Court of Appeals also suggested that Section 409 might be unconstitutional because Congress "arguably lacks the authority to dictate rules of discovery and rules of admissibility for use in state court." Id. at 130 n.26 (emphasis in original).

The Supreme Court of Washington affirmed, but on other grounds. See Guillen v. Pierce County, 31 P.3d 628 (2001). Rejecting the Court of Appeals's construction of Section 409 as "unsound in principle and unworkable in practice" (id. at 646), it held that the materials at issue clearly were covered by Section 409. The court then turned to the question of whether Section 409, so construed, is constitutional. It concluded that Section 409 "violates the United States Constitution's federalist design * * * insofar as it makes state and local traffic and accident materials and data nondiscoverable and inadmissible in state and local courts, simply because they are also ‘collected' and used for federal purposes." Id. at 633 (emphasis in original). According to the court, neither the Spending Clause, nor the Commerce Clause, nor the Necessary and Proper Clause empowered Congress to create a privilege that covers preexisting materials that are merely compiled in connection with a federal highway safety program. Accordingly, the court ruled that "only materials and data originally created for the statutorily identified federal purposes are lawfully covered by the federal privilege and, thus, exempt from public disclosure * * *." Id. (emphasis in original).

Addressing the issue of standing, the court concluded that private parties may challenge the constitutionality of a federal law on federalism grounds even when not joined by a state government. Id. at 696. As the court explained, "the Constitution divides authority between federal and state governments for the protection of individuals." Id. (quoting New York v. United States, 505 U.S. 144, 181 (1992)). 

This case is of substantial interest to state and local governments, as well as to railroads and other private entities that are required to collect and submit information to state departments of transportation for compilation in connection with federal highway safety programs.

This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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