Supreme Court Docket Report - 2001 Term, Number 15 / April 29, 2002

Co-authored by Mr Andrew H. Schapiro

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. 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...