The State and Local Legal Center (SLLC) filed an amicus brief encouraging the Supreme Court to not hear a case arguing that a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional.
The question the Supreme Court will decide in Expressions Hair Design v. Schneiderman is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violates the First Amendment.
Here is why this case matters to local governments: An amicus brief filed on behalf of a number of retailers asking the Court to hear this case and overturn the Second Circuit decision argues that the Court should use this case as an opportunity to rule that strict (almost always fatal) scrutiny should apply to restrictions on commercial speech per Reed v. Town of Gilbert, Arizona (2015). In Reed the Supreme Court held that strict scrutiny applies to content-based restrictions on speech. In the Reed opinion, the Court did not extend its holding to the commercial speech context where states and local governments historically have had more latitude to regulate speech. Continue reading
Is Lee v. Tam a stretch, or perhaps a slant, for state and local governments to be interested in?
The issue in Lee v. Tam is whether Section 2(a) of the Lanham Act, which bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks, violates the First Amendment.
McLane v. EEOC is a case only an (employment) lawyer could love.
When the Equal Employment Opportunity Commission (EEOC) investigates allegations of employment discrimination if the employer refuses to provide the information the EEOC requests it will issue a subpoena demanding the employer produce the information. If the employer refuses to comply with the subpoena the EEOC may ask a court to enforce it. Continue reading
In an opinion published this morning in National Institute of Family and Life Advocates v. Harris (“NIFL“), the Ninth Circuit has held that California may require licensed pregnancy-related clinics to provide patients with notice about the existence of publicly-funded family-planning services without violating the First Amendment. California may also require unlicensed clinics to provide notice stating that they are not licensed.
This case may be of interest to IMLA members, particularly as the opinion notes that a city attorney may be a proper defendant in an action challenging a state-wide statute that gives a city attorney power to enforce the statute. Continue reading
Trouble over phantom accounts isn’t the only problem Wells Fargo is currently facing. Cities have sued Wells Fargo and Bank of America for reverse redlining (lending to equally qualified minorities on less favorable terms than whites).
In its Supreme Court amicus brief in Wells Fargo v. City of Miami and Bank of America v. City of Miami the State and Local Legal Center (SLLC) argues that Miami, and other cities across the country, should have “standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to cities by discriminatory lending practices. Continue reading
The first Monday in October (today) is Supreme Court opening day! Two other traditions coincide with this tradition. First is State and Local Legal Center (SLLC) Supreme Court Preview webinar. Second is the results of the Supreme Court’s “long” conference. Continue reading
If complying with the Americans with Disabilities Act (ADA) is difficult, it is even more difficult to ensure that another entity is complying as well. In Ivy v. Morath the Supreme Court will decide when state and local governments are responsible for ensuring that a private actor complies with the ADA. The State and Local Legal Center (SLLC) argues they should be responsible when the private actor may fairly be said to be implementing a service, program, or activity of the public entity itself. Continue reading
Is the North Carolina legislature in a “Catch-22” or are its problems entirely of its own making? The Supreme Court might weigh in on these questions in McCrory v. Harris.
McCrory v. Harris is a typical redistricting case in at least two respects. First, it raises so many legal issues that it is impossible to know what the Supreme Court will focus on. Second, beyond all the technical legal arguments, plaintiffs’ fundamental objection to the redistricting plan is familiar: they claim the legislature packed minority voters into safe minority districts under the guise of complying with the Voting Right Act (VRA) to reduce minority voters’ influence in other districts. North Carolina claims it is caught in a “Catch-22.” Continue reading
What does a litigant do when the statute of limitations has run on his or her best claim? Get creative, of course, especially when the Supreme Court has left the door open.
Elijah Manuel was arrested and charged with possession of a controlled substance even though a field test indicated his pills weren’t illegal drugs. About six weeks after his arrest he was released when a state crime laboratory test cleared him. Continue reading
As a result of the Supreme Court’s decision in Birchfield v. North Dakota in states that criminalize the refusal to take a blood alcohol concentration tests, officers should offer only a breath (not blood) test unless they have a warrant.
The Court held 5-3 that states may criminalize an arrestee’s refusal to take a warrantless breath test. If states criminalize the refusal to take a blood test police must obtain a warrant. The State and Local Legal Center (SLLC) filed an amicus brief arguing that states should be able to criminalize warrantless refusal to consent when a person is arrested upon suspicion of drunken driving. Continue reading
Ironically, had Justice Scalia lived Fisher II might have been 4-4 or become Fisher III. But instead the more liberal Justices plus Justice Kennedy prevailed in this win for affirmative action.
In Fisher v. University of Texas at Austin the Supreme Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional, as least of 2008, when this case was first brought. Justice Kagan did not participate in this case. Continue reading
The Supreme Court split 4-4 in United States v. Texas on whether the President’s deferred action immigration program violates federal law. As a result, the Fifth Circuit’s nationwide temporary stay of the program remains in effect. Next, a trial court may rule on whether the program should be permanently stayed. Continue reading
Whoever thought up merger probably long ago gave up worrying if it was unconstitutional, if they even ever thought about it. But now that person (and numerous cities, counties, and states) have reason to worry.
In Murr v. Wisconsin the Supreme Court will decide whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property. The State and Local Legal Center (SLLC) filed an amicus brief arguing that these very common provisions are constitutional.
Not directly, but certainly unmistakably.
A police officer stopped Edward Streiff after he left a suspected drug house. The officer discovered Streiff had an outstanding warrant, searched him (legally), and discovered he was carrying illegal drugs. The Supreme Court held 5-3 that even though the initial stop was illegal, the drug evidence could be admissible against Streiff in a trial.
In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died.
There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school. Continue reading
It is hard to keep quiet when you have a secret big enough that ABC’s 20/20 is interested in interviewing you. But if you talk too soon will the lawsuit your secret culminates in be dismissed?
The False Claims Act (FCA) allows third parties to sue on behalf of the United States for fraud committed against the United States. Per the Act a FCA complaint is kept secret “under seal” until the United States can review it and decide whether it wants to participate in the case.
In Rigsby v. State Farm the Supreme Court will decide what standard applies when deciding whether to dismiss a case because of a seal violation. Some federal circuits dismiss all cases. Continue reading
Per federal employment discrimination laws timelines are short and decisive. If an employee misses a deadline his or her case is over. If such timelines aren’t forgiving the Supreme Court is in Green v. Brennan. The Court chose a deadline for constructive discharge cases, where an employee feels compelled to quit due to intolerable working conditions, more favorable to employees. Continue reading
The Supreme Court does not (yet) have the issue of whether the new regulations defining “waters of the United States” exceed the Environmental Protection Agency (EPA) authority. In the meantime in United States Army Corp of Engineers v. Hawkes the Court ruled unanimously that an approved jurisdictional determination that property contains “waters of the United States” may be immediately reviewed in court. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing in favor of this result. Continue reading
More specifically, in CRST Van Expedited v. EEOC the Supreme Court ruled employers who prevail in Title VII employment discrimination cases may recover attorney’s fees if they are able to “rebuff” employee’s claims for any reason—including reasons not related to the merits of the claims. Continue reading
Spokeo v. Robins is both esoteric and important. Like a lot of Supreme Court opinions these days it seems like a compromise that will just increase confusion. In short, the scope of liability for state and local governments under a number of federal statutes remains uncertain.
The Court sent the case, involving whether Thomas Robins may sue a search engine under the Fair Credit Reporting Act (FCRA) for providing inaccurate information about him, back to the lower court to determine whether Robins suffered a “concrete” harm and therefore had “standing” to sue.
While this case does not sound relevant to state and local government it is. A number of federal statutes applicable to state and local government—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA)—allow plaintiffs to sue even if they have not necessarily been harmed. Regardless, to bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. Injury-in-fact—including a concrete harm—is one of the requirements for “standing.” Continue reading
The Supreme Court’s unanimous decision in Zubik v. Burwell reads like a settlement agreement. It is likely a compromise influenced at least partially by Justice Scalia’s death. Is the agreement the Court brokered enough to keep this issue out of the Supreme Court again or will the devil be in the details? Only time will tell and by then the Court will (probably) have nine Justices again.
Zubik v. Burwell, involving religious nonprofit objections to providing notice objecting to the Affordable Care Act’s (ACA) birth control mandate, does not directly affect state and local government. But it is one piece of a litigation puzzle over this law; most of the puzzle pieces do affect state and local government. In a three-page unauthored opinion the Court did not rule on the merits of the case leaving the lower courts to “resolve any outstanding issues.” Continue reading
Former Virginia Governor Bob McDonnell has put forward his best case that a lower court has adopted an overly broad definition of “official acts” in federal bribery statutes. Will the Supreme Court agree? Continue reading
In March 2015 Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” A new challenge coming out of South Dakota might be just the case Justice Kennedy had in mind. Continue reading
Bad facts make bad law. That said, it is hard to imagine a case sympathetic to a public employer where it discharged or dismissed an employee based on its incorrect belief that the employee engaged in constitutionally protected speech. Either way, the case the Supreme Court heard, and ruled against the public employer in, involved a son helping his bedridden mother.
In Heffernan v. City of Paterson, New Jersey the Supreme Court held 6-2 that a public employer violates the First Amendment when it acts on a mistaken belief that an employee engaged in First Amendment protected political activity. The State and Local Legal Center (SLLC) filed an amicus brief taking the opposite position. Continue reading
In a (barely) 11 page opinion the Supreme Court did what three lower court judges could not do in three separate opinions: agree
In Harris v. Arizona Independent Redistricting Commission the Supreme Court confirms that state and local governments don’t have to apportion legislative districts perfectly, but they do need a good reason for failing to doing so. But we knew that before.
The Court held unanimously that Arizona’s redistricting plan, which had a total population deviation among districts of 8.8 percent, wasn’t unconstitutional. Those attacking the plan failed to show it is more probable than not that the deviation reflects illegitimate reapportionment considerations. Continue reading
It was a different crowd today at the Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish.
United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government. Continue reading
There is outright theft and then there is getting paid for doing the job but not following all the rules. The former may be the subject of a False Claims Act claim but what about the latter? The Supreme Court will hear argument on that question next week.
The False Claims Act (FCA) allows private individuals to sue on behalf of the United States to recover money that has been defrauded from the federal government. While the Supreme Court has yet to rule whether states and local governments can bring FCA claims, local governments, but not state governments, can be sued for making false claims against the federal government. Continue reading
Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states. Continue reading
In a 6-2 decision the Supreme Court ruled that the Sixth Amendment right to counsel includes allowing a criminal defendant to use untainted substitute assets to hire an attorney, rather than freezing them for forfeiture to the government after conviction.
The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result in Luis v. United States. State and local governments—police departments in particular—receive criminal asset forfeitures. Any many state forfeiture statutes allow freezing of substitute assets. Continue reading
In what has been described as the most important “one-person, one-vote” case since the Supreme Court adopted the principle over 50 years ago, the Court held that states may apportion state legislative districts based on total population. Local governments may do the same.
The Court’s opinion in Evenwel v. Abbott is unanimous. All 50 states currently use total population to design state legislative districts; only seven adjust the census numbers “in any meaningful way.” Continue reading
Friedrichs v. California Teachers Association could have turned public sector labor law upside down. In an unsurprising move the Supreme Court issued a non-precedential 4-4 opinion affirming the lower court’s decision by an equally divided Court. This opinion continues the status quo. Had Justice Scalia not died in February this case almost certainly would have had a different outcome. Continue reading
Interested parties will hold their breath (pun intended) as the Court contemplates a trio of drunk driving cases. Fourth Amendments cases are often closely divided so the absence of Justice Scalia may make a difference. Continue reading
In a per curiam (unauthored) opinion, which concurring Justices Alito and Thomas call “grudging,” the U.S. Supreme Court has ordered the Supreme Judicial Court of Massachusetts to decide again whether Massachusetts’s stun gun ban is constitutional. Currently eight states and a handful of cities and counties ban stun guns.
The highest state court in Massachusetts held that the Second Amendment doesn’t protect stun guns because they weren’t in common use at the time the Second Amendment was enacted, they are “unusual” as “a thoroughly modern invention,” and they aren’t readily adaptable for use in the military. Continue reading
As promised, President Obama has nominated someone to fill the vacancy on the Supreme Court.
If this wasn’t an election year Merrick Garland would be a surprising choice. He is known as a moderate, is older (63), a white male, and has been a judge on the D.C. Circuit Court of Appeals for almost 20 years.
If it wasn’t an election year Senate Republicans would probably be racing to confirm him. Continue reading
On March 10, 2016, the California Court of Appeal, Second Appellate District, Division Eight (LA), published an opinion in Lamar Central Outdoor, LLC v. City of Los Angeles (Mar. 10, 2016, B260074) __ Cal.App.4th ___, a case involving another round in the continuing litigation between outdoor advertising companies and the City of Los Angeles over “offsite signs”—billboards with commercial messages in locations other than at a property owner’s business. In 2002, the city established a permanent ban, with some exceptions, on new offsite signs, including a ban on alterations of legally existing offsite signs. A few years later, the city banned offsite signs with digital displays. The Los Angeles Municipal Code “prohibits signs if they ‘[a]re off-site signs, including off-site digital displays, except when off-site signs are specifically permitted pursuant to a relocation agreement’” and also prohibits “alterations, enlargements or conversions to digital displays of legally existing off-site signs, except for alterations that conform to . . . this Code.” (LAMC, § 14.4.4.B.11.)
In a 2-1 decision the Sixth Circuit Court of Appeals ruled that it—rather than a federal district court—has jurisdiction to decide whether the Clean Water Rule, clarifying the scope of the “waters of the United States (WOTUS),” exceeds the Environmental Protection Agency’s (EPA) authority.
In October the Sixth Circuit assumed it had jurisdiction and issued a temporary nationwide stay of the rule. The WOTUS rule defines “waters the United States,” according to the EPA, “through increased use of bright-line boundaries” to make “the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”
The Sixth Circuit stayed the rule concluding it was likely that a number of the definitions were at odds with Rapanos v. United States (2006) and the distance limitations in the final rule weren’t a “logical outgrowth” of the proposed rule, in violation of the Administrative Procedures Act. Continue reading
So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.
The short answer is it depends and in all instances isn’t entirely clear. Continue reading
The State and Local Legal Center (SLLC) has made history and IMLA has been a part of it. For the first time ever, SLLC has asked the Supreme Court to accept and decide a case. IMLA joined the SLLC brief. The SLLC is asking the Court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies. Continue reading
The Friday before and the Tuesday after Martin Luther King, Jr. Day the Supreme Court accepted a total of nine cases, including a challenge to the President’s executive order allowing undocumented parents of children who are citizens to remain in the United States.
United States v. Texas will be heard this term and decided by the end of June. Oral argument will be held next term in some of the other cases accepted mid-January.
Four of the eight cases accepted, in addition to the immigration case, affect state and local governments. While I will write more about each of these cases later, for now, below is a brief synopsis of them. Continue reading
In an already action packed term the Supreme Court has definitively secured this term’s place in history but agreeing to decide whether the President’s deferred action immigration program violates federal law or is unconstitutional. The Court will issue an opinion in United States v. Texas by the end of June 2016.
The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States. About 5 million people are affected.
Twenty six states sued the United States and won before the Fifth Circuit.
The Court will decide four legal issues in this case. Continue reading
It was a typical oral argument at the Supreme Court in a “big” case. Protesters outside with opposing messages tried to out yell each other, but everyone inside was listening to Justice Kennedy.
In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share. Continue reading
A challenge to President Obama’s immigration deferral program and (another) challenge that could harpoon the Affordable Care Act (ACA) could make it on the Supreme Court’s docket this term and be decided by the end of June.
For the first time at the Supreme Court’s private conference on January 15 it will consider petitions in United States v. Texas (immigration) and Sissel v. Department of Health and Human Services (ACA). Continue reading
You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional.
In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.
Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.
The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.
Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent. Continue reading
Every year the Supreme Court refuses to hear thousands of cases. A denial of certiorari does not mean the Court agrees with the lower court decision. So most cert denials go unnoticed.
That said, many eyebrows were raised for many reasons when the Court denied cert in Friedman v. City of Highland Park. The issue in the case was whether the City of Highland Park could ban assault weapons and large capacity magazines. Continue reading
When the Chief Justice extended argument time today perhaps he was hoping more time would shed more light on what to do with the Fisher case–for the second time… Continue reading
Today was a big day for redistricting before the Supreme Court. The Court decided one redistricting case and heard oral argument in two others.
Texas, like all other states, redistricts based on total population data from the census. A number of Texas voters argue that state legislative districts deviate from the ideal by as much as 45 percent when voting population is used. At oral argument today in Evenwel v. Abbott Justices Kennedy, frequently the Court’s “swing” vote in high-profile cases, asked whether both metrics can be used to comply with one-person, one-vote. Continue reading
Imagine being sued in a court where there is no appeals process and the legal precedent relevant to your case may not be written down. That is the situation Dollar General has found itself, and state or local governments may find themselves in, if the Supreme Court does not reverse the Fifth Circuit’s decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians. Continue reading
Some Supreme Court case are epic because they are important. Other cases are epic because they have been litigated for decades. Depending on how the Court rules, Hyatt II may be important for both reasons.
Gilbert Hyatt’s dispute with the California Franchise Tax Board began in the early 1990s. The Supreme Court decided one issue in his case in the early 2000s. The stakes in Hyatt II are high not just for Hyatt but for all states.
In 1993 the Franchise Tax Board (FTB) of California audited Gilbert Hyatt following a newspaper article reporting he made a lot of money patenting a computer chip. Hyatt’s 1991 tax return indicated he lived in California for only nine months and relocated to Nevada. FTB concluded that Hyatt moved to Nevada in 1992 and assessed him $10.5 million in taxes and interest. Continue reading
In Jones v. Davis, the Ninth Circuit is considering whether California’s death penalty scheme violates the Eighth Amendment because it is arbitrarily imposed and plagued by systemic delays. In a hearing before a three-judge panel earlier this week, the Court had tough questions for the California Attorney General’s office, which is defending California’s death penalty and challenging the district court’s grant of habeas relief. The AG’s argument focuses less on the systemic issues address by the Appellee and numerous amici, including the Innocence Project, and more on the specifics of habeas procedure. The case is being closely watched as it may have implications well beyond California.
It takes only common sense to know that whoever is in charge of redistricting would prefer to gerrymander in their favor as much possible.
The irony of the Supreme Court agreeing to decide Harris v. Arizona Independent Redistricting Commission is inescapable. On June 29 in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court held that Arizona’s redistricting commission could be solely responsible for congressional redistricting. In the first sentence of its opinion the Court noted Arizona voters adopted the commission to avoid partisan gerrymandering. The next day the Court agreed to decide Harris where the plaintiffs allege that Arizona’s redistricting commission engaged in partisan gerrymandering in state legislative redistricting that violated one-person, one-vote. Continue reading
Stare decisis may be tossed out the window next Supreme Court term in what promises to be one of the most closely followed cases. The stakes for unionized public employees couldn’t be higher.
In Friedrichs v. California Teachers Association the Supreme Court has agreed to decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share. Continue reading
If you were going to bet on the outcome of a Supreme Court case—much less the Court’s reasoning—you should avoid the Fisher case. It’s anyone’s best guess.
For the second time the Supreme Court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin. Continue reading