Police Officer Liability for Reasonable Force?

It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez.

(Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.)

In
Los Angeles County v. Mendez the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.” Continue reading

 

Ohio Supreme Court Refuses to Extend Quill to a Business-Privilege Tax

In Crutchfield v. Testa the Ohio Supreme Court held that Ohio’s commercial activity tax (CAT) applies to online vendors even if they lack a physical presence in the state. More technically, the court refused to extend the U.S. Supreme Court’s holding in Quill Corp. v. North Dakota (1992), that states cannot require retailers with no in-state physical presence to collect sales tax, to Ohio’s privilege-of-doing-business tax.

The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of this result. Continue reading

 

Supreme Court Accepts “Some” versus “Meaningful” Special Education Benefits Case

You don’t have to be a linguist to understand that there is a wide gap between the meaning of “some” and “meaningful.” The Supreme Court must pick between these words to determine what level of educational benefits students with a disabilities must receive.

The relevance of a special education case to local governments may not be obvious. But depending on how the Supreme Court rules, this case could mean cost increase for some, if not many, school districts. To the extent local governments fund local school districts and/or compete with them for limited state dollars, this case is relevant. Continue reading

 

Preemption Clause too Narrow? Expand it Via Regulations!

Every time a federal agency thinks the scope of a preemption clause in federal law is too narrow may it just write a regulation expanding it? That is the heart of the matter in Coventry Health Care of Missouri v. Nevils.

The question of most interest to state and local governments in this case, more technically, is whether Chevron deference applies to an agency’s regulation construing the scope of a statute’s express-preemption provision. Continue reading

 

SCOTUS Dismisses Case Involving State and Local Governments Ensuring Private Entities Comply with the ADA

In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license. None of the schools accommodate deaf students. So a number of deaf students sued the Texas Education Agency (TEA) arguing it was required to bring the driver education schools into compliance with the Americans with Disabilities Act (ADA).   

In Ivy v. Morath the Supreme Court was supposed to decide when state and local governments are responsible for ensuring that a private actor complies with the ADA. The Court dismissed the case concluding it was moot most likely because Texas claimed that four of the students suing completed the driver education course and one moved out of state. Continue reading

 

May Sex Offenders Be Banned From Using Social Networking Sites Like Facebook?

The Supreme Court keeps on accepting First Amendment cases—perhaps because among the current Court there is much agreement on the First Amendment, so being down a Justice doesn’t matter. This does not bode well for state and local governments, like North Carolina in this case. For better or worse, this case like Expressions Hair Design v. Schneiderman, accepted in September, gives the Supreme Court a chance to refine its holding in Reed v. Town of Gilbert, Arizona (2015).

Continue reading

 

SCOTUS Takes Qualified Immunity Case Arising out of 9/11 Investigations

The Supreme Court has agreed to decide cases accusing federal government officials at the highest levels of mistreating people investigated for possible terrorist connections after 9/11.

All Supreme Court qualified immunity cases, including Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, affect state and local governments. These cases raise issues that frequently come up in run-of-the-mill qualified immunity cases, in particular, whether the court defined the “established law” at a high level of generality instead of considering the specific facts of the case when deciding whether to grant or deny qualified immunity.

Continue reading

 

Mesa v. Hernandez: A Qualified Immunity Quandary

Qualified immunity cases, generally speaking, could not be more straightforward for state and local governments. No matter how bad the facts of the case, one legal analysis is better.

Mesa v. Hernandez provides a qualified immunity quandary. If Agent Mesa wins his qualified immunity claim, other government officials in the future may lose their qualified immunity claims. 

  Continue reading

 

State and Local Legal Center Urges Supreme Court to Wait for Right Internet Sales Tax Case

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.

Continue reading

 

Remember Reed: Might Supreme Court Apply it to Commercial Speech?

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

 

How Broad is the Government Speech Doctrine?

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.

Continue reading

 

Supreme Court to Decide Appellate Court Level to Review EEOC Subpoenas

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

 

Pregnancy-Related Clinics May Be Required To Provide Notice About Family Planning

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

 

Cities v. Big Banks: Supreme Court to Pick the Winner

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

 

Opening Day at the Supreme Court

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

 
 

SCOTUS to Decide when State and Local Governments Must Police Private Actor Compliance with the ADA

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

 

SCOTUS to Decide “Catch-22” or “You Only Have Yourself to Blame” Redistricting Case

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

 

SCOTUS to Decide Whether Fourth Amendment Malicious Prosecution Claims are Possible

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

 

SCOTUS Narrows Bribery Definition Applied to Government Officials

Beyond what even the Supreme Court describes as “tawdy tales of Ferraris, Rolexes, and ball gowns,” McDonnell v. United States deals with a practical issue many elected officials confront at some point in their political career: when and how can you help someone who has helped you?  Continue reading

 

Supreme Court Drunken Driving Case Implicates Police Practices

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

 

Narrow (and Rare) SCOTUS Win for Affirmative Action

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

 

Supreme Court Halts Immigration Deferred Action

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

 

Is Merger Doomed: SCOTUS to Decide

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. 

Continue reading

 

Ferguson Finds its Way to the Supreme Court

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.

Continue reading

 

This Case is Not (Only) About Paving Poor Preschool Playgrounds

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

 

Break the Seal and Lose Your Case?

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

 
 

SCOTUS Victory for Employees in Employment Discrimination Deadline Case

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

 

SCOTUS Rules Against the Corp In (Small) WOTUS Case

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

 

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