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SCOTUS to Decide Whether Intervenors Must Have Standing

The Supreme Court accepts all kinds of cases involving states and local governments. Town of Chester v. Laroe Estates involves a long, complicated story and legal issue.

Steven Sherman sued the Town of Chester alleging an unconstitutional taking as the town refused to approve a subdivision on plots of land Sherman intended to sell to Laroe Estates. Laroe Estates advanced Sherman money for the land in exchange for a mortgage on the property. Sherman defaulted on a loan to a senior mortgage holder who foreclosed on the property.

Laroe Estates, claiming to be the owner of the property, sought to “intervene” in the takings lawsuit. The Federal Rules of Civil Procedure grant the right to intervene to non-parties who “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” 

The district court concluded that Laroe Estates lacked Article III “standing” under the U.S. Constitution to assert a takings claim against the Town. Laroe Estates argued that it was a “contract vendee” of the Sherman property. According to the district court, under longstanding circuit court precedent “contract vendees lack standing to assert a takings claim.”

The question the Supreme Court will decide in Town of Chester v. Laroe Estates is whether Laroe Estates may intervene in this case even though it lacks standing.

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What Might Justice Gorsuch Mean for States and Local Governments?

The authors of Searching for Scalia evaluated who on President Trump’s list of potential nominees to replace Justice Scalia’s seat on the Supreme Court would be most like Justice Scalia—the originalist, the textualist, and, most importantly, the conservative. The winner:  Supreme Court nominee Judge Neil Gorsuch!

While just one case is too few to judge any Supreme Court nominee, one case in particular gives states and local governments a reason to be excited about this nomination. Last year Judge Gorsuch (strongly) implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

While Judge Gorsuch hasn’t ruled on abortion (an issue states care about) his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to states and local governments.

Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ—agency deference—the views of states and local governments are generally more in-line with Judge Gorsuch’s view.

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SLLC Supreme Court Amicus Brief Urges Supreme Court to Pull the Plug on the Provocation Rule

Los Angeles County v. Mendez poses a simple question:  Should police officers be liable for the use of reasonable force (when they have done something they should not have).

In its amicus brief the State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, under which any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.

 In Los Angeles County v. Mendez everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them.  Mendez kept a BB gun in his bed to shoot 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. The officers shot Mendez. Continue reading

 

Supreme Court Rules No Pay for Passing through Security Screenings

In a unanimous opinion in Integrity Staffing Solutions v. Busk, the Supreme Court held that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend waiting to undergo and undergoing security screenings.  Government employees who work in courthouses, correctional institutions, and warehouses routinely go through security screening at the beginning and/or end of the workday.   SCT stairs

Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders.  They claimed that they should have been paid for the time they spent waiting and going through security screenings to prevent theft at the end of each shift.

Under the FLSA employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity.  According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  The Court concluded that security screenings were not intrinsic to retrieving and packing products and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work. Continue reading

 

Must All Signs Be the Same?

The Supreme Court’s decision in Reed v. Town of Gilbert, Arizona could upset sign codes nationally.5554035521_f6b59ccafa_n  Most sign codes, like Gilbert’s, include different categories of temporary signs.  It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs.  In this case the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs.  The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.  IMLA joined the State and Local Legal Center’s (SLLC) amicus brief asking the Court not to go that far.

Gilbert’s Sign Code includes temporary directional signs, political signs, and ideological signs.  After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert.  The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs. Continue reading

 

Hotels in the Hot Seat: Supreme Court Accepts Hotel Registry Case

Cities and states from California to Maine have confronted the problem of hotels that are crime magnets. hotel One solution that some evidence suggests effectively deters crime is ordinances or state laws that require hotels to keep detailed information about guests that are subject to police inspection.  These ordinances and laws generally do not require police to obtain a warrant.

In Los Angeles v. Patel a Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants.  Motel operators claim this ordinance is facially invalid under the Fourth Amendment.

The first issue the Supreme Court will decide in this case is whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment. Continue reading

 

Federal Agency Notice-And-Comment: Supreme Court To Decide When It Is Required

Interpretive and substantive rules.   What is the difference?SupremeCourt2  Under the Administrative Procedures Act (APA) substantive regulations interpret statutes and federal agencies adopt them only after notice-and-comment.  Interpretive rules and are promulgated without-notice and-comment.  But what if an agency changes an interpretive rule;   should it first seek notice and comment?  The Supreme Court will decide this issue in Perez v. Mortgage Bankers Association.

The State and Local Legal Center (SLLC) argues yes in its amicus brief, which agrees with the lower court that significant changes to an interpretation of a regulation amounts to effectively changing the regulation, which requires notice-and-comment.  Local governments frequently have been surprised by interpretive rules that have changed regulations.  IMLA joined the SLLC’s brief. Continue reading

 

Supreme Court Long Conference Results Are In!

Last Monday’s Supreme Court “long conference” did not disappoint.  The Supreme Court granted a total of 11 petitions.Supreme Court3  At least four of those cases are relevant to local government.

Housing discrimination.  For the third time the Court has accepted a case involving this issue of whether disparate-impact (as opposed to disparate treatment) claims can be brought under the Fair Housing Act (FHA).  It remains to be seen if Texas Department of Housing and Community Affairs v. The Inclusive Communities Project will settle like its predecessors, Mt. Holly v. Mt. Holly Citizens in Action and Magner v. Gallagher.  The 11 federal circuits that have decided this issue have all held that disparate-impact claims are actionable.  The Supreme Court is expected to rule to the contrary.  Local government have been sued for disparate impact under the FHA and have sued other entities.

Fourth Amendment search.  In its second Fourth Amendment case of the term, Rodriguez v. United States, the Court will decide whether a police officer violates the Fourth Amendment by extending (for just a few minutes) an already-completed traffic stop for a dog sniff.  The Eighth Circuit held the search in this case was reasonable.  The police officer waited seven or eight minutes after the traffic stop was completed before deploying his sniffer dog because he wanted backup given that there were two people in the stopped car.

Employment discriminationContinue reading

 

The Supreme Court and Simple Math

Its simple math.  Really.  But will the Supreme Court do it?  The Eleventh Circuit refused.

The question in Alabama Department of Revenue v. CSX Transportation is whether a state discriminates against rail carriers in violation of federal law even when rail carriers pay less in total state taxes than motor carriers?  No, argues the State and Local Legal Center (SLLC) in an amicus brief.  Forty-two states exempt motor carriers from sales tax on diesel fuel.  This case is relevant to local government because a number of cities and counties in Alabama impose an additional sales tax on railroad diesel fuel.calc

Rail carriers (railroads) in Alabama pay a four percent sales tax on diesel fuel.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  The Railroad Revitalization and Regulatory Reform Act (4-R) prohibits state and local governments from imposing taxes that discriminate against railroads.  Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax.  But, the Eleventh Circuit refused to compare the total taxation of railroads and trucks to avoid the “Sisyphean burden of evaluating the fairness of the State’s overall tax structure.”  Instead it concluded Alabama’s sales tax on railroads violates 4-R because Alabama’s competitors don’t pay it.

The SLLC brief argues that given state’s traditional power to tax the Court should interpret 4-R narrowly.   The brief suggests the Court could take three approaches to rule in favor of Alabama. Continue reading

 

Supreme Court and Local Governments: What Will the Court Accept Next?

While the Supreme Court’s next term officially begins on October 6, its “long conference” is September 29.  At this conference the Court will review a backlog of petitions that have been piling up over the summer.  SCOTUSblog complies a list of petitions that it thinks have a reasonable chance of being granted.  Eight of the petitions the Court will consider either during the “long conference” or at a later conference directly involve or impact local governments.5554035521_f6b59ccafa_n

Public nuisance.  A Brighton, Michigan, ordinance presumes that an unsafe structure will be demolished as a public nuisance if the cost of repairing it exceeds its value.  The owner has no right to repair the structure.  Brighton property owners wanted to repair two unsafe structures even though Brighton estimated it would cost almost double the property value do so.  In Bonner v. City of Brighton, Michigan, the property owners claim the ordinance violates substantive and procedural due process.

Employment.  Under federal employment law to bring a discrimination claim a plaintiff must prove that an “adverse action” occurred, and to bring a retaliation claim a plaintiff must prove a “materially adverse action” occurred.  The question in Kalamazoo County Road Commission v. Deleon is whether either can be proven when an employer grants an employee’s request for a job transfer (and the new position turns out to be less desirable than the old position).  The International Municipal Lawyers Association (IMLA) filed an amicus brief in this case. Continue reading

 

Can You Hear Me Now? If Not, Read This

In T-Mobile South v. City of Roswell, the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement. CellTower The State and Local Legal Center’s (SLLC) amicus brief, which IMLA joined, argues it does.

T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential.  The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone that were compatible with “the natural setting and surrounding structures.”  T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree that would be about 25-feet taller than the pine trees surrounding it.

After a hearing, where city councilmembers stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk. Continue reading

 

Supreme Court Preview for Local Governments

Even though the Supreme Court’s next term won’t officially begin until October 6, the Court has already accepted about 40 of the 70 or so cases it will decide in the upcoming months.

For a more detailed summary of all the cases the Court has accepted so far affecting local government, read the State and Local Legal Center’s Supreme Court Preview for Local Governments.Supreme Court3

Here is a quick highlight of what is on the Court’s docket right now that will affect local government: Continue reading

 

Overtaxed? The SLLC and IMLA File Supreme Court Amicus Brief in Comptroller v. Wynne

Every Supreme Court tax case comes down to an argument perhaps most familiar to small children6355404323_cf97f9c58e:

“It isn’t fair.”

The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief in Comptroller v. Wynne argues that the tax policy choice the Maryland legislature made is fair (or at least fair enough) and that state and local governments should be able to devise tax schemes without judicial interference.

In Comptroller v. Wynne the Supreme Court will determine whether the U.S. Constitution requires states to give a credit for taxes paid on income earned out-of-state.

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Birth Control Mandate Case Also a Land Use Case?

As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby LobbyGavel The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.

Though not obvious, this case may have a significant impact on land use regulation.  For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion. Continue reading

 

Do Buffer Zones Survive After McCullen?

In a unanimous opinion in McCullen v. Coakley,Supreme Court3 the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment.

Massachusetts adopted this statute because protesters routinely violated a previous statute.  Petitioners were “sidewalk counselors” who claimed the buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.”

The State and Local Legal Center’s (SLLC) amicus brief points out that cities frequently use buffer zones in numerous contextsFor example, prior to McCullen, lower courts upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners. 

McCullen begs an obvious question:  will any buffer zone statutes and ordinances survive constitutional scrutiny now? Continue reading

 

Can You Hear Me Now: Supreme Court Rules Cell Phone Privacy Isn’t Dead

Supreme Court watchers love technology cases.Supreme Court Technology is for the young, so the cliché goes, and the youngest Justices are middle age.  Court watchers speculate, will the Justices even understand the technology they are ruling? Justice Robert’s 28-page opinion in Riley v. California, discussing encryption, apps, and cloud computing, reads like a primer on how cell phones work. The Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone. Continue reading

 

Paid to Wait: Supreme Court to Decide

Imagine yourself going through a security screening. Annoying, right?  securityNow imagine yourself getting paid to go through a security screening.  Better, right?  But what if you are a city with a security screening process that as a result of a court decision must now pay employees to go through security screenings?  Sometime in the next year, the Supreme Court will affirm or reverse the Ninth Circuit’s decision to this effect in Integrity Staffing Solutions v. Busk.

In this case the Supreme Court will decide whether hourly employees must be paid for time spent in security screenings under the Fair Labor Standards Act (FLSA).  Continue reading

 

Multiple Taxation Vexation

Taxpayers X and Y live in the same state and have the same income but Taxpayer X earns all of her income in-state while Taxpayer Y earns all of her income out-of-state.Supreme Court  Taxpayer Y pays more in taxes because she pays income taxes out-of-state and pays a county income tax in her home state.  Unfair?  (Not necessarily.  After all, Taxpayer Y receives government services in the county where she resides.)  Unconstitutional?  The Supreme Court will decide.

The Supreme Court hasn’t decided a state and local government tax case since Armour v. Indianapolis, during the Court’s 2011 term.  In Comptroller v. Wynne it will decide an issue of first impression:  whether a state must offer a credit to its residents for all income taxes paid to another jurisdiction.  A decision against Maryland’s Comptroller would limit state and local taxing authority nationwide. Continue reading

 

Unqualified Win in Qualified Immunity Cases

On Tuesday the Supreme Court issued two unanimous opinions granting law enforcement officers qualified immunity.highway stop  These ruling were unsurprising; the lower court errors in both cases were obvious.

In Plumhoff v. Rickard the Sixth Circuit did not so much as discuss the qualified immunity standard when denying qualified immunity.  In Wood v. Moss the Ninth Circuit viewed the qualified immunity question at a high level of generality causing dissenting Judge O’Scannlain to (accurately) warn:  “Our court’s track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.”

But at least Plumhoff v. Rickard contained a surprise. Continue reading

 

Supreme Court Campaign Finance Case Likely to Affect State Laws in about a Dozen States

7432008582_3c5d6429f6_nBy Lisa Soronen [We are thrilled to have a guest post from Lisa Soronen, executive director of the State and Local Legal Center.]

Last week, the Supreme Court struck down aggregate limits on individual contributions to candidates for federal office, political parties, and political action committees.

McCutcheon v. FEC will likely impact the dozen or so states that place aggregate limits on individual campaign contributions to candidates for state office. A cursory glance at state campaign finance laws regulating local elections indicates that states generally have not adopted aggregate caps meaning this decision will not affect contributions to local elections.

Federal law allows Continue reading

 

Can State and Local Governments Establish Buffer Zones? SCOTUS To Decide.

Local governments often establish fixed buffer zones to eliminate congestion and to ensure public safety. Does the First Amendment require a significant change in current local practices?Barricade

Next Wednesday, January 15th, the Supreme Court will hear arguments in a case that could address that question. McCullen v. Coakley, No. 12-1168 concerns whether a Massachusetts law that bars entering or remaining within a 35-foot radius of a reproductive-health-care facility violates the First Amendment. The First Circuit upheld the law as a reasonable, content-neutral limit.

Local governments have filed two important amicus curiae briefs in the case.

First, IMLA joined the National League of Cities, National Association of Counties, the International City/County Management Association, and the U.S. Conference of Mayors in a brief urging the Court to respect state and local governments’ need to establish buffer zones to protect public safety. The brief offers a number of examples Continue reading

 

IMLA To Hold Supreme Court Practice Seminar

Be sure to check out details of the Supreme Court Practice Seminar that IMLA and the State and Local Legal Center will host on March 4, 2014. Lisa Soronen, executive director of the State and Local Legal Center, has invited some remarkable Supreme Court practitioners. It is a can’t-miss program for anyone intersted in the Court. You can register here.

 

SCOTUS Confirms that Younger Abstention Is Appropriate in Only Three Exceptional Circumstances

In a unanimous decision released Tuesday, the U.S. Supreme Court held that federal abstention under Younger v. Harris, 401 U.S. 37 (1971) applies in only three “exceptional circumstances.”  The Court previously identified those exceptional circumstances in New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (NOPSI) (1989). This week, it confirmed, in Sprint Communications, Inc. v. Jacobs et al., that Younger abstention extends no further. Supreme Court

The Court reaffirmed that Younger abstention is appropriate, and federal courts should defer to state courts, only when faced with:

  1.  “state criminal prosecutions,”
  2. “civil enforcement proceedings,” or
  3. “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”

If none of those exceptional circumstances is present, the federal courts may not invoke Younger abstention.

As we discussed previously, Sprint involved two separate actions that Sprint Communications, Inc. initiated against members of the Iowa Utilities Board (IUB), one pending in Iowa state court and the other in the U.S. District Court for the Southern District of Iowa.  In both actions, Continue reading

 

Upcoming Supreme Court Cases

The State and Local Legal Center hosted an excellent Supreme Court Preview Webinar this afternoon. The panelists — Tom Hungar, Kannon Shanmugam, and David Savage — discussed the following cases:

  • Town of Greece v. Galloway — Is the Town’s legislative prayer practice consistent with the Establishment Clause?
  • EPA v. EME Homer City GenerationDid the EPA properly enact rules addressing State air pollution under Clean Air Act’s “good neighbor” provision?
  • McCullen v. Coakley — Does a Massachusetts law forbidding speakers from entering or remaining on a sidewalk in front of a reproductive health care facility violate the First Amendment?
  • Fernandez v. California If a defendant’s co-tenant consents to a search but the defendant had objected to the search previously and was not present and objecting at the time of the search, does the co-tenant’s consent control for Fourth Amendment purposes?
  • Schuette v. Coalition to Defend Affirmative Action Did Michigan violate the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination in public university admissions decisions?
  • Mt. Holly v. Mt. Holly Gardens Citizens in Action — Are disparate impact claims cognizable under the Fair Housing Act?

 

 

The Supreme Court and Local Governments

SupremeCourt2(1) Next Term

Over at Cities Speak, Lisa Soronen of the State and Local Legal Center outlines upcoming Supreme Court cases that could affect local governments:

And Wednesday, Irene Zurko discussed the case of Sprint Communications v. Jacobs.

For a full preview, register to hear from Tom Hungar, Kannon Shanmugam, and David Savage on October 22nd here.

(2) More on Town of Greece

SCOTUSblog has some interesting commentary on Town of Greece, a case that we previously addressed here.

Eric Rassbach says that those challenging the Town’s prayer practice have reached a “‘Hail Mary'” moment” where “facing imminent disaster” they “stake[e] everything on one desperate, final gambit:”

Continue reading