SCOTUS Rules Rebuffed is Enough for Employers to Win Attorney’s Fees

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

 

SCOTUS Sends Standing Case Back to Lower Court

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

 

Supreme Court Decides Birth Control Mandate Case (Sort of)

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

 
 
 

Mistaken Beliefs May Mean Constitutional Claims

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

 

SCOTUS: Just Give Us a Reason to Approve Your Imperfect Redistricting Plan

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

 
 

Supreme Court Hears Oral Argument in Important Immigration Case Today

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

 

SCOTUS to Decide When a Claim is False per the False Claims Act

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

 

Supreme Court Midterm for the Local Governments

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

 

SCOTUS Rules Accused Criminals May Keep Untainted Asset to Pay Attorney

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

 

Local Governments May (Continue to) Redistrict Based on Total Population

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

 

4-4 SCOTUS Decision: Public Sector Fair Share Laws Survive

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

 

Supreme Court Clarifies Standard for Determining Indian Reservation Diminishment

The American legal system is premised on overlapping jurisdiction as the federal, state, and local governments share authority. Adding Indian tribes into the mix complicates matters further as the Supreme Court’s decision in Nebraska v. Parker illustrates. Continue reading

 
 

Supreme Court Sends Stun Gun Case Back to the Lower Court

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

 

California Supreme Court protects attorney-client privileged documents from inadvertent disclosure under Public Records Act

This morning, the California Supreme Court issued its long-awaited Opinion in Ardon v. City of Los Angeles, holding inadvertent disclosure of attorney-client privileged documents in response to a Public Records Act request does not waive the privilege. Continue reading

 

What Might Merrick Garland Mean for State and Local Government?

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

 

California Court of Appeal Rules That the “Sign Ban” in the Los Angeles Municipal Code Does Not Violate the Free Speech Clause of the California Constitution

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.)

Continue reading

 

Sixth Circuit Rules it has Jurisdiction to Decide WOTUS Challenge

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

 
 

Supreme Court Puts Clean Power Plant Regulations on Hold

The Supreme Court may currently be on recess but that did not stop it from issuing a stay preventing the Clean Power Plan regulations from going into effect until the D.C. Circuit Court of Appeals, and the Supreme Court if it chooses to, rules on the regulations. Continue reading

 

State and Local Legal Center Files First Supreme Court Amicus Certiorari Petition

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

 

Supreme Court’s 2015-2016 Docket is Full (and Over Flowing)

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

 

SCOTUS to Decide Immigration Deferred Action Case

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

 

Supreme Court Hears Oral Argument in Mandatory Union Fee Case

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

 

Immigration and the ACA: A SCOTUS Conference to Remember?

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

 

Unfair or Unconstitutional? The Supreme Court to Decide

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

 

Supreme Court Refuses to Hear Gun Case

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

 
 

Supreme Court Looks for a Compromise in Significant Redistricting Case

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

 

Supreme Court to Decide Case about Trying to Get Out of Tribal Court

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

 

Sue Me: If You Can?

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

 

Ninth Circuit Addresses Constitutionality of California Death Penalty

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.

 

Supreme Court to Decide Another “One-Person, One-Vote” Case

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

 

Bye, Bye Abood?

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

 

Affirmative Action at Austin: Take 2

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

 

San Francisco Cannot Sue Federal Agency For Gas Explosion Under APA

Today, the Ninth Circuit issued its Opinion in City & County of San Francisco v. US Department of Transportation, holding the City may not proceed against the Secretary of Transportation and the Pipeline and Hazardous Materials Safety Administration in its case arising from the 2010 San Bruno explosion that killed eight people and leveled an entire neighborhood.  The City sought mandamus relief alleging the agencies unlawfully withheld deciding whether California’s Public Utility Commission adequately enforced federal pipeline safety standards and arbitrarily and capriciously approved the PUC’s certification and funding.  This case could have broad implications for other public entities trying to force the federal government to enforce safety standards where there is no clear violation of a law or regulation, but merely “troubling allegations” about an agency’s approach to its oversight role.

 

 

 

Raisin Takings Case: What’s in it for Local Governments?

Same-sex marriage, Affordable Care Act, raisins. What do these three have in common?  The Supreme Court has recently issued a ruling regarding each of them.

In Horne v. Department of Agriculture the Supreme Court held 8-1 that the federal government violated the Fifth Amendment Takings Clause by physically setting aside a percentage of a grower’s raisin crop each year without pay. At least six other agriculture set aside programs are in trouble as a result of this case. But what about its impact on state and local government?

Continue reading

 

Same-Sex Couples Have A Constitutional Right to Marry

Obergefell v. Hodges will be celebrated and condemned internationally.

In a 5-4 decision written by Justice Kennedy the Supreme Court held that same-sex couples have a constitutional right to marry. All state laws and court decisions banning same-sex marriage are now invalid. Continue reading

 

SCOTUS Rules Disparate-Impact Fair Housing Claims are Possible But Limited

If you were surprised by the Supreme Court’s ruling in the Affordable Care Act Case, you may have even been more surprised by the Court’s ruling in the Fair Housing Act case.

In Texas Department of Housing and Community Affairs v. inclusive Communities Project the Supreme Court held 5-4 that disparate-impact claims may be brought under the Fair Housing Act (FHA). All Federal Circuit Courts of Appeals had decided this issue ruling that such claims were possible, though they disagreed about the level of proof required. The Supreme Court was expected to come to the opposite conclusion (or else why would they have taken this case?). Having taken up this question twice before, only to have the cases settle, the Court has finally resolved it. Continue reading

 

Federal Government Wins Health Care Case: ACA Subsidies will not Subside

Third time is the charm for the Affordable Care Act.  King v. Burwell is the first complete victory for the law.

In 6-3 decision the Supreme Court ruled today that health insurance tax credits are available on the 34 Federal Exchanges. The Court’s opinion focused largely on the consequences of ruling to the contrary:  the destruction of health insurance markets. Continue reading

 

Supreme Court Rules Against Jails in Excessive Force Case

In Kingsley v. Hendrickson the Supreme Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for a subjective standard. As a result of this ruling it will be easier for pretrial detainees to bring successful excessive force claims against corrections officers.   Continue reading

 

Unconstitutional: Hotel Registry Ordinances and Statutes

While cities are rewriting their sign codes, per the Supreme Court’s decision last week in Reed v. Town of Gilbert, Arizona they should check to see if they have a hotel registry ordinance.  If they do, it will need some rewriting too.

In City of Los Angeles v. Patel the Supreme Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available to police without at least a subpoena violates the Fourth Amendment. In his dissenting opinion, Justice Scalia cites to the State and Local Legal Center’s (SLLC) amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes:  Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia.  Continue reading

 

En Banc Argument in Peruta Suggests Limitations on Concealed Carry May Survive

Another update on the concealed-weapons permit case, Peruta v. County of San Diego.  The Ninth Circuit held en banc rehearing this week.  Panel consisted of Chief Judge Thomas, and Judges Pregerson, Silverman, Graber, McKeown, Fletcher, Paez, Callahan, Bea, Smith, and Owens.  Chief Judge Thomas dissented from the original three-judge panel opinion, authoried by Judge O’Scannlain and joined by Judge Callahan. Continue reading

 

Supreme Court Decides Significant Government Speech Case

In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.

Continue reading

 

Supreme Court’s Sign Case May Require Altering Sign Codes Nationwide

In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide.

Gilbert’s Sign Code treats temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs.

Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest.

While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.” Continue reading

 

Supreme Court to Decide How Far Asset Forfeitures May Go

Sila Luis was indicted on charges related to $45 million in Medicare fraud. Unsurprisingly, her personal assets amounted to much less than $45 million. The federal government sought to freeze the use of her assets not traceable to the fraud. She wanted to use them to hire an attorney.

The question in Luis v. United States is whether not allowing a criminal defendant to use assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.

This case is relevant to state and local government for a few reasons. First, while the asset forfeiture in this case likely went to reimburse the federal government for the Medicaid fraud, generally, law enforcement involved receive asset forfeitures. Second, some state asset forfeiture laws, like the federal statute in this case, allow untainted assets to be substituted. Third, in some instances state and local governments, like the federal government in this case, are the victim of a fraud and seek to recoup as much of their losses as possible.      Continue reading

 

Supreme Court Will Be “Doing the Math” in an FLSA Class Action Case

Tyson Foods v. Bouaphakeo presents a classic legal dilemma:  two lines of cases, one older and one newer, neither exactly on point.  Which will the Court pick or will it craft a new test?

More pragmatically, local governments will be interested in this case because it involves the Fair Labor Standards Act (FLSA). Given the difficulties of complying with this complex law, no employer is immune from the possibility of FLSA litigation.

One of two questions the Supreme Court will decide in Tyson Foods v. Bouaphakeo is whether a representative sample may be used calculate liability and damages for an entire class of workers. The other question is whether a class may include hundreds of members who weren’t affected. Continue reading

 

Supreme Court to Decide Another Redistricting Case

While the Supreme Court’s recent grant of certiorari in Evenwel v. Abbott asks one of the biggest questions about redistricting (who exactly is counted to determine one-person-one-vote), the question the Supreme Court will decide in Shapiro v. Mack is much more modest.

Federal law (the Three-Judge Act) requires three-judge panels to decide constitutional challenges to congressional and legislative redistricting. But the single judge to whom the request for a three-judge panel is made may determine that three judges are not required to decide the case.   Continue reading

 

Prison Officials Granted Qualified Immunity in Inmate Suicide Case

We didn’t learn much in Taylor v. Barkes. But we could have.

Prison officials asked the Supreme Court to resolve a circuit split over whether supervisors can be liable for constitutional violations caused by their failure to supervise. Instead of requesting and holding oral argument before deciding the case, the Court summarily reversed the lower court in a per curiam (unauthored) opinion.  The Court “expess[ed] no view” on the vitality of supervisory liability instead concluding no clearly established constitutional right was implicated in this case.

The Court granted two prison officials qualified immunity related to an inmate’s suicide reasoning that no precedent at the time of the suicide established that an incarcerated person had a right to proper implementation of adequate suicide prevention protocols. So prison officials could not be liable for failing to supervise the contractor providing suicide screening. Continue reading

 

Out of Style? Expecting Employees to Inform Employers about Religious Practices

The Supreme Court’s final employment case of the term is a loss for all employers—not just clothing retailers that impose their fashion sense on their employees. As Justice Thomas points out in his dissenting opinion, rather remarkably, it leaves open the possibility that an employer can be liable for intentional discrimination for failing to accommodate a practice it did not know or even suspect was religious.

In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which IMLA attorneys wrote, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation. Continue reading

 

Supreme Court to Decide Race Discrimination Jury Selection Case

It has been a while since the Supreme Court has taken a case that could impact city prosecutors. But in Foster v. Humphries the Supreme Court will decide such a case.  In Foster, the Court will consider whether potential black jurors were purposely excluded in violation of Batson v. Kentucky.

In 1987 Timothy Tyrone Foster, who is black, was sentenced to death for murdering an elderly white woman. The jury was all-white; the prosecutor peremptorily struck all four prospective black jurors.  Prosecutors may strike a number of jurors for any unstated reason except because of race and sex, the Supreme Court has held. Continue reading

 

Supreme Court to Decide Significant One-Person-One-Vote Case

The U.S. Constitution Equal Protection Clause’s “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The Supreme Court will decide these issues in Evenwel v. Abbott.

While this case involves a state legislature redistricting it is equally applicable to a local government drawing boundaries for a local election. While local governments may prefer to decide for themselves (rather than have the Supreme Court tell them) what population metric is appropriate, they may disagree about the better metric.

Continue reading

 

A Retirement Case You Should Not Ignore

The Employee Retirement Income Security Act (ERISA) regulates private employer retirement plans and does not apply to state and local government retirement plans. Tibble v. Edison International is an ERISA case. Before you dismiss it, note that it is an ERISA fiduciary duty case.

A lower court determining the precise nature of the fiduciary duty state and local governments owe employees under a state law similar to ERISA regulating public retirement plans may look to the Supreme Court’s opinion in this case. The Court held unanimously that employers have a continuing duty to monitor retirement investments and remove imprudent ones.   Continue reading

 

Supreme Court Rules Maryland May Not Double Tax

In a 5-4 decision in Comptroller v. Wynne the Supreme Court held that Maryland’s failure to offer residents a full credit against income taxes paid to other states is unconstitutional. The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) filed an amicus brief in support of Maryland.

Maryland taxes residents’ income earned in- and out-of-state. If Maryland residents pay income tax to another state for income earned there, Maryland allows them a credit against Maryland’s “state” tax but not its “county” tax. Maryland also taxes nonresident income earned in the state. Nonresidents pay Maryland “state” tax and a “special nonresident tax” equivalent to Maryland’s lowest “county” tax.

The Wynne’s of Howard County, Maryland, received S-corporation income that was earned and taxed in numerous other states. They challenged Maryland’s failure to allow them to claim a credit against their Maryland county taxes as violating the dormant Commerce Clause, which prevents states from discriminating against or excessively burdening interstate commerce. Continue reading

 

SLLC Files Tenth Circuit Amicus Brief Supporting Colorado’s Effort to Collect Use Tax on Remote Sales

If you know anything about the State and Local Legal Center (SLLC) you know that it files amicus briefs in U.S. Supreme Court cases affecting state and local government. The SLLC made an exception and filed an amicus brief in a federal circuit court of appeals case because of the importance of the issue to SLLC members.

In Direct Marketing Association v. Brohl the Tenth Circuit will decide whether Colorado’s 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. At least three other states have similar notice and reporting requirements (Oklahoma, South Dakota, and Vermont).    Continue reading

 

SCOTUS Didn’t Decide Whether the ADA Applies to Disability Arrests

In a Supreme Court term not light on law enforcement cases City and County of San Francisco v. Sheehan was the most important police case of the term. Alas, we will have to wait for another day for the Supreme Court to decide whether Title II of the Americans with Disabilities Act (ADA) requires police officers to accommodate suspects who are armed, violent, and mentally ill when bringing them into custody. The Court did held that the officers in this case were entitled to qualified immunity. Continue reading