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
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.
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?
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
To bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. An undisputed element of standing is that the plaintiff has suffered an injury. But what if Congress allows plaintiffs who have suffered no concrete harm to sue based upon a mere violation of statute? The Supreme Court will decide whether such plaintiffs have Article III standing in Spokeo v. Robins.
While the impact of this case on state and local governments may not be obvious, there are a finite number of statutes in which Congress has created a private right of action and a plaintiff may be unharmed by a violation of the statute. Most are consumer protection statutes like the Truth in Lending Act and the Telephone Consumer Protection Act, which don’t apply to state and local governments. But a few such statutes do apply—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA).
As our country prepares for the upcoming brown out and black out season, the Supreme Court has accepted a case involving our nation’s electricity grid. Local governments who participate in demand response programs have a direct stake in the outcome of this case.
The Supreme Court has agreed to decide whether FERC may regulate “demand response” payments offered to electric utility customers to reduce their electricity use during periods of high demand. State and local governments may save money through participating in demand response programs. But the Electric Power Supply Association argued, and the D.C. Circuit Court of Appeals agreed, that FERC’s Order 745 encroaches on states’ regulatory authority. Continue reading
If not all Supreme Court cases are equal, all employment law Supreme Court really cases aren’t equal. Green v. Donahoe isn’t Ledbetter v. Goodyear, holding employees have 180 days from a discriminatory pay decision to bring a claim, which Congress promptly overturned. Most employers won’t care how this case is decided. So, why did the Court take it? Likely to resolve a circuit split that has been brewing for the last 25 years.
In Green v. Donahoe the Supreme Court will decide for purposes of federal employment discrimination law when the filing period for a constructive discharge claim begins to run. The Court’s choices are: when an employee resigns or the employer’s last allegedly discriminatory act. Often these two events occur at the same time, but not in this case.
This case will apply to constructive discharge claims brought against state and local government employers under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court. Continue reading
It is a rare Supreme Court case where employers and arguably employees both won (and the Court doesn’t “split the baby” and rule partially in favor of each party). In Mach Mining v. EEOC the only clear losing party is the Equal Employment Opportunity Commission (EEOC).
The Supreme Court held unanimously that a court may review whether the Equal Employment Opportunity Commission (EEOC) satisfied its statutory obligation to attempt to conciliate employment discrimination claims before filing a lawsuit.
The Court’s decision is favorable to employers, including state and local governments, who benefit from the EEOC’s statutory mandate to try to resolve employment discrimination cases before suing employers. If the EEOC fails to try to conciliate employers may sue the EEOC. Employees benefit from conciliation because it is faster and less demanding that litigation.
Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage.
His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage: for millennia (not years, decades, or even centuries) marriage has been between a man and a women. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway? Continue reading
In a 6-3 decision issued this morning in Rodriguez v. United States, the Supreme Court held that a dog sniff conducted after a completed traffic stop violates the Fourth Amendment. In a dissent, Justice Alito describes the Court’s holding as “unnecessary, impractical, and arbitrary” and suggests savvy officers can skirt it.
Officer Struble pulled over Dennys Rodriguez after he veered onto the shoulder of the highway and jerked back on the road. Officer Struble ran a records check on Rodriguez, then questioned his passenger and ran a records check on the passenger and called for backup, and next wrote Rodriguez a warning ticket. Seven or eight minutes passed between Officer Struble issuing the warning, back up arriving, and Officer Struble’s drug-sniffing dog alerting for drugs. Rodriguez argued that prolonging the completed traffic stop without reasonable suspicion in order to conduct the dog sniff violated the Fourth Amendment. Continue reading
Imagine having to operate two jails: one for pretrial detainees and one for post-conviction detainees. This could be the practical effect of Kingsley v. Hendrickson, depending on how the Supreme Court rules. The State and Local Legal Center (SLLC) filed an amicus brief in this case, which IMLA joined, arguing that the same or similar standard should apply to excessive force claims brought by pretrial detainees and post-conviction detainees to avoid this result. Continue reading
Beginning in the mid-2000s numerous states adopted “Jessica’s” laws requiring GPS monitoring of certain sex offenders. These statutes have been challenged on a number of grounds—including that they violate the Fourth Amendment’s prohibition against unreasonable searches. Eight states, including North Carolina, monitor sex offenders for life.
The Supreme Court ruling that GPS monitoring of certain sex offenders is a Fourth Amendment search doesn’t invalidate these statutes. But if the lower court—and ultimately the Supreme Court—rule GPS monitoring is an unreasonable Fourth Amendment search—state statutes nationwide could be unconstitutional.
Young v. United Parcel Service presents a dilemma most employers, including states, can relate to. What should an employer do if a pregnant employee’s job requires that she lift an amount well above what her doctor has approved during pregnancy?
The specific issue the Court had to decide in this case was whether an employer violated Title VII because it accommodated many but not all nonpregnancy-related disabilities but did not accommodate pregnancy-related disabilities. Maybe, the Supreme Court ruled in a 6-3 decision. Continue reading
Quick update for those of you following the hotly contested Second Amendment case Peruta v. County of San Diego. Yesterday, the Ninth Circuit agreed to an en banc rehearing. The Court will take up the issue of whether San Diego County’s “good cause” permitting requirement, governing concealed weapons permits, impermissibly infringes on the Second Amendment right to bear arms. The California Attorney General and other groups brought petitions for rehearing after unsuccessfully attempting to intervene in the case last year when the San Diego Sheriff opted not to seek rehearing of the original Opinion, authored by Judge O’Scannlain, and joined by Judge Callahan, with a dissent by Judge Thomas.
In the only SCOTUS case of the term where the issue of race is front and center (other than high profile Fair Housing Act case) the Court sided with minority voters. Unsurprisingly, Justice Kennedy joined the majority opinion.
In Alabama Legislative Black Caucus v. Alabama the Supreme Court held 5-4 that when determining whether unconstitutional racial gerrymandering occurred—if race was a “predominant motivating factor” in creating districts—one-person-one-vote should be a background factor, not a factor balanced against the use of race. And Section 5 of the Voting Rights Act (VRA) does not require a covered jurisdiction to maintain a particular percent of minority voters in minority-majority districts. The Court sent this case back to the lower court to reconsider in light of its opinion. While this case involves state legislative redistricting, the legal standards at issue apply to redistricting at the local level as well. Continue reading
In 2006 the Department of Labor (DOL) stated in an opinion letter that mortgage loan officers were eligible for overtime but then changed its mind in 2010 in an “Administrator’s Interpretation.”
In Perez v. Mortgage Bankers Association the Supreme Court held unanimously that federal agencies do not have to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before changing an interpretive rule, like the 2006 opinion letter in this case. The Court overturned a nearly 20 year-old precedent from the D.C. Circuit, Paralyzed Veterans of America v. D.C. Arena, which the State and Local Legal Center (SLLC) argued in an amicus brief that the Court should affirm. Paralyzed Veterans held that an agency must use APA notice-and-comment when significantly altering an interpretive rule that interprets a legislative rule. Continue reading
In Alabama Department of Revenue v. CSX Transportation the Supreme Court held 7-2 that railroads can be compared to their competitors when determining whether a tax is discriminatory in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act). Different taxes paid by railroads and their competitors must be compared with determining whether a tax railroads pay is discriminatory. The State and Local Legal Center (SLLC) filed an amicus brief in this case disagreeing with the Court’s first holding and agreeing with its second holding.
The 4-R Act prohibits state and local governments from imposing taxes that discriminate against rail carriers (railroads). Railroads in Alabama pay a four percent sales tax on diesel fuel as do other commercial and industrial purchasers. Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax. Water carriers pay no sales or excise tax on diesel fuel. Continue reading
There is no way to know for sure why Justice Kennedy wrote a concurring opinion in Direct Marketing Association v. Brohl stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” But even if you don’t read the State and Local Legal Center (SLLC) amicus brief’s criticism of Quill and merely scan its table of authorities, you will notice that two of the three non-case related citations in Justice Kennedy’s opinion come from the SLLC’s brief. Continue reading
For Justice Kennedy it was his questions, for Chief Justice Roberts it was his silence…
Today the Supreme Court heard oral argument in King v. Burwell, where it will decide whether federal health insurance exchanges, operating in 34 states, can offer subsidies to middle and low income purchasers of insurance under the Affordable Care Act (ACA).
Simply put, the Court must decide whether it agrees with the Internal Revenue Service (IRS) that the following statutory language, “established by the State,” can include federal exchanges too.
All eyes and ears were on Justice Kennedy and Chief Justice Roberts during the argument. Justice Kennedy is the Court’s “swing” Justice, and Chief Justice Roberts crucially concluded in the first Supreme Court challenge to the ACA that the individual mandate is a constitutional “tax.” Continue reading
Don’t assume that an argument should be discarded because it is supported only an old case. For example, plaintiffs relied on Stevens v. Los Angeles Dock & Terminal Co., 20 Cal.App.743 (2d Dist. 1912), and defendant More-Gas first noted that Stevens is “’a 100 year old case that has never been cited by another California case.’” The court in McGuire v. More-Gas Investments, LLC, 220 Cal.App.4th 512, 526 (3d Dist. 2013), responded:
That fact is of no significance. While it is true Stevens has never been cited by any published appellate decision in California, that does not undercut the validity of the reasoning in the case. Indeed, the principle applied in Stevens is well known in the common law, including here in California. An appellate court in New York that cited Stevens over 70 years ago succinctly articulated that principle as follows:
As McGuire illustrates, age of a compelling case is not necessarily a matter of consequence. What are some ways to show why the case is compelling when it has never been cited by another California court? Continue reading
The Supreme Court’s 2014-2015 docket is now complete. While the same-sex marriage and Affordable Care Act cases will receive the most attention, the docket is chalked full of cases significant to local government. The State and Local Legal Center’s (SLLC) Midterm Review article summarizes all the cases accepted and already decided that will affect local government. Expect decisions in all the cases by the end of June. If you are interested in these cases and others register here for the SLLC’s FREE Supreme Court Midterm Review webinar held on March 5.
Here are some highlights:
Reed v. Town of Gilbert, Arizona and Sheehan v. City & County of San Francisco are probably the most significant cases of the term for local government. Depending on how the Court rules, both could impact every city and county in the United States. The issue in Reed is whether sign codes may treat some categories of temporary signs more favorably than others. If the Court holds they cannot, virtually all local governments will have to rewrite their sign codes. In Sheehan the Court will decide whether the Americans with Disabilities Act applies to arresting a mentally ill suspect who is armed and violent.
HR 101: Don’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. No, no says the Equal Employment Opportunity (EEOC), if an employer thinks an employee may need a religious accommodation an employer must ask about religion. Is the EEOC’s (new) view correct?
That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores. Who must ask about the need for a religious accommodation—the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus brief, which IMLA wrote, argues the employee/applicant should ask.
Abercrombie & Fitch’s “Look Policy” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits headwear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she were Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons. Continue reading
Since the 1980s (and arguably the 1970s) the Supreme Court has been clear: a pretrial detainees’ right to be free from excessive force derives from the Fourteenth Amendment’s Due Process Clause. But what does that mean exactly? The Supreme Court will lay out the specifics in Kingsley v. Hendrickson.
State and local government officials can be sued for money damages for constitutional violations. A legal standard more deferential to government officials means that successful pretrial detainee excessive force lawsuits will be less likely. More significantly, different excessive force standards for pretrial detainees and sentenced inmates, who are often housed in the same facility, will be difficult for correctional officers to comply with. After all, correctional officers must make split decisions regarding the use of force and may not know whether an incarcerated person is a pretrial detainee or has been convicted. Continue reading
To the casual Supreme Court watcher Holt v. Hobbs will probably be known and remembered more for John Oliver’s rendition of the oral argument featuring dogs posed as Supreme Court Justices rather than what the Court held. But, for Gregory Holt, and other inmates who have been not been allowed to grow half inch beards, it is the holding they will remember.
The Supreme Court held unanimously that an inmate’s rights under the Religious Land Use and Institutionalized Persons Rights Act (RLUIPA) were violated when he was not allowed to grow a half inch beard in accordance with his religious beliefs. This case will affect correctional institutions with no-beard policies and may provide lower court’s guidance in evaluating RLUIPA claims in the corrections and land use context. Continue reading
Commentary by Bill Brinton, Rogers Towers, Jacksonville, Florida
During the oral argument in Reed v. Town of Gilbert, Arizona, Reed’s counsel, David Cortman of Lawrenceville, Georgia, recommended that temporary signs relating to a one-time event, such as an election or anything else that occurs on a particular date, be taken down within the same time period after that event. He represented to the Court that “in fact the Washington, D.C., municipal regulations have that exact code . . . it’s one we would recommend to the Court. . . . I believe it’s 13605.” According to Mr. Cortman, “what it says is all temporary signs should be treated the same, period. . . . Every temporary sign can be up for 180 days.” See Oral Argument Transcript at pages 16-17.
As a practitioner who defends and drafts sign regulations, I found a number of the propositions made by the petitioners to be impractical and contrary to common sense. I was curious about the D.C. municipal regulation 13605, and when I looked for the regulation I could not find it. There was a good reason. It is not a law at this time, nor has it ever been the law. There is simply a draft proposal from 2012 for a new Title 13, Chapter 6, that would provide regulation for temporary signs, but the same is still under review by the District, and has been undergoing further changes since 2012 based upon public input.
Occasionally an attorney will propose that the parties stipulate to the meaning of a relevant statute. Such stipulations have no legal force and will be disregarded by the court. Numerous cases so hold across the United States:
- “Parties to a dispute cannot stipulate to the law and assume that the court will follow blindly an incorrect interpretation of the law, especially in an unsettled and everchanging area.” Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984)
- “Parties may stipulate to facts but they may not stipulate to the law. Such stipulations as to the law will be disregarded.” Ahlswede v. Schoneveld, 488 P.2d 908, 910 (Nev. 1971), followed in Southern Pacific Transp. Co. v. United States, 462 F. Supp. 1227, 1239 (E.D. Cal. 1978)
- “As for the proper measure of damages and the parties’ stipulation thereto, we note the circuit court’s accurate statement from the bench that parties cannot stipulate to the law or to legal conclusions.” Henry v. Mitchell, 428 S.W.3d 454 (Ark. 2013)
There is an important distinction between stipulations as to the interpretation of the law and agreements as to the choice of law. Contracting parties can agree to the choice of law, especially before any dispute has arisen, absent the presence of facts that justify breaking the agreement such as duress, undue influence, illegality, or the like.
Don’t assume that the court has these rules memorized and instantly accessible. On the other hand, don’t take advantage of the ignorance of your opponent and the workload of the trial court. It often happens that the trial court accepts a stipulation as to interpretation of the law only to be reversed on appeal. At that point, the party harmed by the stipulation may have new counsel or time to research the issue. The appellate court is much more likely to have a law clerk to research such issues. Attempts to argue that the stipulation should stand are likely to produce a loss of respect. As a result, any benefit of the stipulation is typically more than negated by the cost of a reversal and retrial.
Per the adoption of the Americans with Disabilities Act (ADA), accommodating persons with disabilities is the norm. Twenty-five years after the Act’s passage, the Supreme Court will decide whether it applies to police officers arresting a mentally ill suspect one who is armed and violent.
In City & County of San Francisco v. Sheehan the Supreme Court will decide whether, pursuant to the Americans with Disabilities Act (ADA), police must accommodate a suspect’s mental illness when arresting him or her. The State and Local Legal Center’s (SLLC) amicus brief argues no because no conclusive evidence indicates that accommodating mentally ill suspects reduces injuries or the use of force. IMLA filed a separate amicus brief in this case making different arguments than those made in the SLLC’s brief.
When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated. When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her. Sheehan survived.
Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.
Sheehan argues that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room. Her proposed accommodations included: respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation.
The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests. The ADA applies broadly to police “services, programs, or activities,” which the Ninth Circuit interpreted to mean “anything a public entity does,” including arresting people. The court refused to dismiss Sheehan’s ADA claim against the city reasoning that whether her proposed accommodations are reasonable is a question of fact for a jury.
The Ninth Circuit also concluded that reentry into Sheehan’s room violated the Fourth Amendment because it was unreasonable. Although Sheehan needed help, “the officers had no reason to believe that a delay in entering her room would cause her serious harm, especially when weighed against the high likelihood that a deadly confrontation would ensue if they forced a confrontation.”
State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”
The Ninth Circuit refused to grant the officers qualified immunity related to their reentry: “If there was no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known that this use of force was excessive.” The Court will review the Ninth Circuit’s qualified immunity ruling.
The SLLC’s amicus brief argues that the ADA should not apply to arrests. While few police departments have the resources to adopt specialized approaches to responding to incidents involving the mentally ill, no conclusive evidence indicates that these approaches reduce the rate or severity of injuries to mentally ill suspects. No one-size fits-all approach makes sense because police officers encounter a wide range of suspects with mental illnesses. And even psychiatrists—much less police officers who aren’t mental health professionals—cannot predict with any reasonable degree of certainty whether an armed suspect with a mental illness will harm himself or herself or others in an emergency. Finally, because the officers in this case could not predict whether Sheehan would harm herself or others if they did not reenter her room, they are entitled to qualified immunity.
Orry Korb, Danny Chou, Greta Hanson, and Melissa Kiniyalocts, County of Santa Clara, California wrote the SLLC’s amicus brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, and the United States Conference of Mayors.