All posts by Kira Klatchko

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

Posted in Case Notes on October 14, 2016 By Kira Klatchko

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 →

Peruta Update: No Second Amendment Right to Carry Concealed Weapons

Posted in Case Notes on June 10, 2016 By Kira Klatchko

For those of you who have been following Peruta v. City of San Diego, the multi-year battle over restrictions on the concealed-carry permits, yesterday the Ninth Circuit issued its long awaited en banc Opinion. Continue reading →

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

Posted in Case Notes IMLA Briefs on March 17, 2016 By Kira Klatchko

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 →

Ninth Circuit Addresses Constitutionality of California Death Penalty

Posted in Case Notes on September 2, 2015 By Kira Klatchko

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.

San Francisco Cannot Sue Federal Agency For Gas Explosion Under APA

Posted in Case Notes on July 30, 2015 By Kira Klatchko

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.

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

Posted in Case Notes Commentary on June 19, 2015 By Kira Klatchko

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 →

En banc argument set in Peruta

Posted in Case Notes on May 14, 2015 By Kira Klatchko

For those of you closely following the concealed-weapons permit case, Peruta v. San Diego, the Ninth Circuit has set en banc rehearing for June 16, 3:30 pm, in San Francisco. As anticipated, amici briefs have poured in; all are available on the Ninth Circuit’s website.

Ninth Circuit Agrees To En Banc Rehearing in Peruta

Posted in Case Notes on March 27, 2015 By Kira Klatchko

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.

Phantom Law Recommended to Supreme Court

Posted in Commentary IMLA Briefs on January 28, 2015 By Kira Klatchko

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.

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on December 21, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Fourth Circuit

Hudson v. Pittsylvania County, No. 13-2160 (Dec. 17, 2014): In appeal of district court order finding that County prayers violated Establishment Clause, the court found that County’s appeal was untimely.

Fifth Circuit

Bell v. Itawamba County Sch. Bd., No. 12-60264 (Dec. 12, 2014): The court ruled that school board violated student’s freedom of speech by disciplining him for a song that he wrote off campus, that he posted to the Internet from his home computer, and that did not cause a substantial disruption.
Sanchez v. City of Austin, No. 13-50916 (Dec. 18, 2014): The court reversed district court’s order denying attorney’s fees to plaintiffs who challenged City’s policy of issuing criminal-trespass notices to “Occupy” protestors.

Sixth Circuit

Tyler v. Hillsdale County Sheriff’s Dept., No. 13-1876 (Dec. 18, 2014): The court ruled that prohibition on posession of firearm by person who has been committed to a mental institution violates the Second Amendment.
Greco v. Livingston County, No. 14-1203 (Dec. 19, 2014): The court affirmed denial of qualified immunity for officer in case involving dog attack.

Eighth Circuit

County of Ramsey v. Mescorp Inc., No. 13-3026 (Dec. 19, 2014): See above.

Ninth Circuit

Vivid Entm’t v. Fielding, No. 13-56445 (Dec. 15, 2014): The court affirmed order denying motion to enjoin the “County of Los Angeles Safer Sex in the Adult Film Industry Act.”

Tenth Circuit

Campbell v. City of Spencer, No. 14-6015 (Dec. 16, 2014): The court ruled that district court properly determined that claim preclusion barred 1983 claims regarding seizure of horses.
Felkins v. City of Lakewood, No. 13-1415 (Dec. 19, 2014): The court affirmed that ADA against City failed because Felkins failed to present expert medical evidence that her major life activities were substantially limited by her condition.

(12/15/2014-12/19/2014)

Image courtesy of Flickr from Ken Lund (creative-commons license, no changes made).

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on December 14, 2014 By Kira Klatchko

Catching up on recent published decisions involving local governments:

First Circuit

S. Kingstown Sch. Cmte v. Joanna S., No. 14-1177 (Dec. 9, 2014): The court ruled in Individuals with Disabilities in Education Act (“IDEA”) case that settlement agreement relieved school committee of obligation to perform or fund evaluations, and remanded to determine whether Joanna S. is entitled to attorney’s fees.

Second Circuit

Hardison v. Bd. of Ed. of the Oneonta City Sch. Dist., No. 13-1594 (Dec. 3, 2014): The court ruled, in IDEA case, that district court should have shown greater deference to state review officer’s determination to deny reimbursement.

Fourth Circuit

E.L. v. Chapel Hill-Carrboro Bd. of Ed., No. 13-2330 (Dec. 3, 2014): The court found that student did not exhaust her administrative remedies and that school board did not violate the IDEA; student received therapy mandated by her IEP.
AGI Assoc., LLC v. City of Hickory, No. 13-2097 (Dec. 11, 2014): The court found that under North Carolina law, governmental immunity from equitable claims is waived when a county or municipality acts in a proprietary, not governmental, capacity.

Fifth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 24, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Watchtower Bible and Tract Soc. of New York v. Mun. of San Juan, No. 13-1605 (Nov. 20, 2014): The court upheld injunction against municipalities that had issued permits for gated communties in Puerto Rico that did not provide access to public streets for First-Amendment activities.

Third Circuit

Dougherty v. Sch. Dist. of Philadelphia, No. 13-3868 (Nov. 21, 2014): The court affirmed denial of motion for summary judgment on qualified immunity grounds in case presenting First-Amendment retaliation claim.

Sixth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 17, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Fourth Circuit

West v. Murphy, No. 13-2014 (Nov. 14, 2014): The court affirmed that defendants were entitled to qualified immunity in 1983 action challenging strip searches of arrestees on Fourth-Amendment grounds.

Sixth Circuit

Williams v. City of Cleveland, No. 13-4162 (Nov. 10, 2014): The court ruled that plaintiff stated a plausible Fourth-Amendment claim when it alleges that jail required detainees to undress in presence of other detainees and sprayed their naked genitals with delousing solution.
Misewicz v. City of Memphis, No. 14-5053 (Nov. 14, 2014): The court affirmed grant of summary judgment for City in challenge under Fair Labor Standards Act regarding overtime pay.
S.L. v. Pierce Twp. Bd. of Trustees, No. 13-3892 (Nov. 17, 2014): The court affirmed summary judgment orders for defendants in case arising out of arrest of juvenile. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 10, 2014 By Kira Klatchko

Here are the last two weeks’ published decisions involving local governments:

Second Circuit

Golodner v. Berliner, No. 12-1173 (Oct. 27, 2014): In 1983 action alleging that City and City officials retaliated against Golodner for exercising his First-Amendment rights, the court affirmed that defendants were not entitled to summary judgment on the basis of qualified immunity.
Berman v. City of New York, No. 13-598 (Oct. 29, 2014): The court certified two questions to the New York Court of Appeals in suit challenging City law that regulates debt-collection agencies.
Harris v. O’Hare, No. 12-4350 (Oct. 30, 2014): In suit claiming that officers violated the Fourth Amendment when they entered yard and shot and killed family dog, the court found that there was insufficient evidence of exigent circumstances to permit warrantless search.
Floyd v. City of New York, No. 13-3088 (Oct. 31, 2014): The court ruled that public-sector unions may not intervene into litigation concerning City’s “stop-and-frisk” policy where the parties to the ligitation have agreed to settlement.

Sixth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on October 28, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Third Circuit

Thorpe v. Borough ofJim Thorpe, No. 13-2446 (Oct. 23, 2014): The court reversed district court’s conclusion that Native American Graves Protection and Repatriation Act requires the Borough to disinter Jim Thorpe. In the court’s view, “Congress could not have intended th[is] kind of patently absurd result.”

Fourth Circuit

Davis v. City of Greensboro, No. 13-1820 (Oct. 22, 2014): In suit brought by police officers and firefighters claiming that the City failed to pay certain wages and benefits, the court affirmed district court’s denial of the City’s motion to dismiss because governmental immunity does not protect the City from breach of contract and estoppel claims. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on October 20, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Sixth Circuit

Cass v. City of Dayton, No. 13-4409 (Oct. 16, 2014): In 1983 action alleging that officer used excessive force in violation of the Fourth Amendment, the court affirmed summary judgment for defendants because officer’s conduct was objectively reasonable and did not violate Fourth Amendment.

Seventh Circuit

Swisher v. Porter County Sheriff’s Dept., No. 13-3602 (Oct. 15, 2014): The court reversed the judgment for defendants because Plaintiff, who brought 1983 action alleging he was denied proper medical care while he was a pretrial detainee, had no duty to exhaust administrative remedies at the jail because jail’s grievance procedure was not clear.

Ninth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on October 13, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Showtime Entn’t v. Town of Mendon, No. 12-2121 (Oct. 8, 2014): The Town’s adult-business-entertainment bylaws unconstitutionally infringe on Showtime’s right to engage in a protected expressive activity; the regulations’ underinclusiveness indicates that Town does not have substantial interest in regulating adult businesses to curb secondary effects.

Seventh Circuit

Matz v. Klotka, No. 12-1674 (Oct. 6, 2014): In 1983 action alleging Fourth-Amendment violation arising out of arrest, the court affirmed the grant of summary judgment for officers on qualified-immunity grounds.

Ninth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on October 6, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Second Circuit

Raspardo v. Carlone, No. 12-1686 (Oct. 6, 2014): In 1983 Title VII employment discrimination case brought by female police officers alleging hostile work environment and disparate treatment, the court affirmed denial of qualified immunity for one officer on hostile-work-environment claim, and reversed denial of qualified immunity for other officers.
Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (Oct. 2, 2014): In case in which City denied request for facility to provide care for those recovering from alcohol and drug abuse because facility did not satisfy zoning requirements, the court affirmed district court’s determination that it lacked subject-matter jurisdiction over ADA suit. Suit was not ripe because applicant had not sought variance or appealed the zoning decision.
Grogan v. Blooming Grove Volunteer Ambulance Corps, No. 13-656 (Sept. 29, 2014): The court affirmed dismissal of 1983 action after it determined that private emergency medical care and general ambulance services contracted for by municipality do not constitute “state action.”

Seventh Circuit Continue reading →

Ninth Circuit: City’s Pioneering Drug-Disposal Ordinance Does Not Violate Commerce Clause

Posted in Case Notes on October 1, 2014 By Kira Klatchko

If your medicine cabinet is filled with old prescriptions and other medications that you no longer want or can use, you might have asked: how and where should I get rid of these?

Local governments are beginning to provide an answer. Old medications are not only misused, they also pose dangers for the environment. Flushing pills or putting them in the trash can contaminate drinking water and cause other environmental problems.

But disposal programs can be expensive. What’s a local government to do?

Alameda County, California, devised a solution. It passed a Safe Drug Disposal Ordinance that requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to participate in a program to collect and dispose of the County’s unwanted drugs.

Manufacturers and distributors objected, however. They claimed that requiring them to pay for the program violates the dormant Commerce Clause because it discriminates against or directly regulates interstate commerce. Are they right?

On Tuesday, the Ninth Circuit said that the program does not violate the Commerce Clause.

The court ruled that Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 29, 2014 By Kira Klatchko

Here is last week’s one published decision involving a local government:

Seventh Circuit

Norton v. City of Springfield, No. 13-3581 (Sept. 25, 2014): The court ruled that the City’s panhandling ordinance is a valid time, place, and manner requirement and therefore withstands a First-Amendment challenge. See coverage from Julie Tappendorf of Municipal Minute here.

Image courtesy of Flickr from Ken Lund (creative-commons license, no changes made).

(Sept. 22, 2014-Sept. 26, 2014)

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 23, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Second Circuit

Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Hist. Dist. Comm’n, No. 12-1057 (Sept. 19, 2014): The court ruled, in Religious Land Use and Instiutionalized Persons Act challege to historic district’s denial of application to modify property for religious use, that district court: (i) erred in finding that rabbi lacked standing; and (ii) applied the wrong standard to determine that the historic district was entitled to summary judgment under RLUIPA.

Sixth Circuit

United Pet Supply, Inc. v. City of Chattanooga, No. 13-5181 (Sept. 18, 2014): The court found that: (i) private animal-welfare employee that contracted with City may not assert qualified immunity; (ii) officers may not assert qualified-immunity defense to “official capacity” suits; (iii) seizure of animals without prior hearing did not violate procedural due process; (iv) revocation of permit without hearing did violate due process; (v) that warrantless animal seizure did not violate Fourth Amendment because of exigent circumstances; and (vi) seizure of records without warrant violated clearly established Fourth-Amendment right and therefore officer was not entitled to qualified immunity.
Finn v. Warren County, No. 13-6629 (Sept. 16, 2014): In action alleging inadequte medical care in violation of the Eighth Amendment and state law claims including negligence after Finn died in his cell, the court reversed grant of summary judgment for officer, remanded for trial on negligence claim, and otherwise affirmed judgment below.

Seventh Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 16, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Ninth Circuit

Butler v. Nat. Comm. Renaissance of Cal., No. 11-55806 (Sept. 12, 2014): The court affirmed that 1983 action challenging warrantless search of apartment was untimely.

Eleventh Circuit

West v. Davis, No. 13-14805 (Sept. 8, 2014): The court found that district court improperly granted summary judgment for security guard in case in which West challenged the actions of a security guard at courthouse security checkpoint; district court should have applied standard for “seizures” under the Fourth Amendment.

D.C. Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 7, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Sixth Circuit

Scheick v. Tecumseh Pub. Sch., No. 13-1558 (Sept. 2, 2014): In case in which Scheick contends that the school district did not renew his contract in violation of the Age Discrimination in Employment Act, the court reversed summary judgment for the school district . The evidence was sufficient to create a genuine issue of fact.
Krause v. Jones, No. 13-2498 (Sept. 3, 2014): The court affirmed finding of qualified immunity for officers in excessive-force case.
F.H. v. Memphis City Schools, No. 13-6323 (Sept. 4, 2014): The court reversed dismissal of student’s 1983 and contractual claims arising out of alleged neglect and abuse; neither settlement agreement nor IDEA barred claims.

Eighth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 3, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Town of Johnston v. Fed. Housing Finance Agency, No. 13-2034 (Aug. 27, 2014): The court affirmed the dismissal of the municipalities’ claim that Fannie Mae and Freddie Mac failed to pay taxes on property transfers; the court found that statutory exemptions from taxation applied. As the court put it: “Six other circuits have recently considered this attempt to shoe-horn a transfer tax into a real property tax, and they have unanimously rejected the argument.”

Second Circuit

Holt v. Town of Stonington, No. 12-4878 (Aug. 29, 2014): The court found that plaintiff who challenged Town’s restrictions on her ability to build on her property failed to exhaust administrative remedies as required by Connecticut law.

Third Circuit Continue reading →

IMLA Files Brief in Wyatt v. Gonzalez

Posted in IMLA Briefs on September 3, 2014 By Kira Klatchko

On Friday, IMLA filed its brief in Wyatt v. Gonzalez, a petition stage Supreme Court case, which involves a question of whether immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” where the plaintiff offered no contradictory evidence. In this case, the police officer was trapped inside a vehicle controlled by someone who had already committed several dangerous felonies. The officer shot and killed the driver of the van, after he resisted verbal commands and non-lethal force. The plaintiffs did not dispute that the driver of the van “stomped” on the accelerator with the officer trapped inside. Nonetheless, the Ninth Circuit ruled that summary judgment on the plaintiffs’ Fourth Amendment claim was inappropriate because the parties disputed how fast the van was traveling at the time the officer employed deadly force.

IMLA’s brief argues that the Ninth Circuit’s focus on the speed of the van is misguided, as that particular fact is not material for the purposes of the summary judgment analysis. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on August 27, 2014 By Kira Klatchko

Apologies that this edition is delayed. I was tied up with a significant filing for the past week. The courts were busy too. Here are the last two weeks’ published decisions involving local governments:

First Circuit

Penn v. Escorsio, No. 13-2309 (Aug. 22, 2014): The court affirmed the district court’s denial of qualified immunity at the summary judgment stage to corrections officers alleged to be deliberately indifferent to risk that detainee could commit suicide. The court found that the issues presented on appeal were purely factual, and the court had no jurisdiction to decide them on interlocutory appeal.

Second Circuit Continue reading →

IMLA Files Amicus Brief in Schultz v. Wescom

Posted in IMLA Briefs on August 20, 2014 By Kira Klatchko

On Monday, IMLA filed its brief in Schultz v. Wescom, a petition stage Supreme Court case, which involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until the completion of discovery. The Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it does not amount to a denial of qualified immunity. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable.

IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process, particularly costly discovery, and the Ninth and Seventh Circuits’ approach effectively denies police officers in those jurisdictions the benefits of qualified immunity and goes against Supreme Court precedent. To read IMLA’s amicus brief in this case click here.

Image courtesy of Flickr by Ken Lund (creative-commons license, no changes made).

IMLA Files Amicus Brief in City of Newport Beach v. Pacific Shores Properties, LLC

Posted in IMLA Briefs on August 20, 2014 By Kira Klatchko

On Monday, IMLA filed its brief in City of Newport Beach v. Pacific Shores Properties, LLC, a petition stage Supreme Court case, which involves questions of discrimination under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Specifically, the issue before the Supreme Court is whether a disparate-treatment claim under the FHA and/or the ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects.

In this case, the Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on August 11, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Fourth Circuit

Cherry v. Mayor and City Council of Baltimore City, No. 13-1007 (Aug. 6, 2014): In case brought by active and retired Baltimore police officers and fire fighters who participate in City’s pension plan, reversing district court’s decision that the City had violated the Contract Clause and affirming that the City had not violated the Takings Clause by changing how it calcualtes pension benefits.

Fifth Circuit

Thompson v. Mercer, No. 13-10773 (Aug. 7, 2014): In 1983 action against officer who shot and killed individual who had stolen vehicle and led police on a two-hour, high-speed chase, affirming grant of qualified immunity to officer because use of deadly force was not a constitutional violation.
Sullo & Bobbitt v. Milner, No. 13-10869 (Aug. 6, 2014): In unpublished decision, affirming dismissal of case brought by attorneys claiming First-Amendment right to access misdemeanor court records within one day of their filing.

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on August 4, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Second Circuit

Cayuga Indian Nation of New York v. Seneca County, No. 12-3723 (July 31, 2014): The Second Circuit affirmed a preliminary injunction preventing the County from using foreclosure proceedings to recover unpaid ad valorem taxes from Cayuga Nation because tribal sovereign immunity bars suit.
Mirabillo v. Reg. Sch. Dist. 16, No. 13-4156 (July 30, 2014): The Second Circuit affirmed that teacher was not entitled to notice and hearing prior to reduction in her position because she was not deprived of any due-process right.

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on July 28, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

[Update: I added the Ninth Circuit’s Daubert decision. (7/31)]
Second Circuit

Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney’s fees to County defendants in case brought by former police officers alleging wrongful termination and defamation.

Cox v. Onondaga Sheriff’s Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims.

Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education.

Fourth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on July 21, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Merit Construction Alliance v. City of Quincy, No. 13-2189 (July 16, 2014): The court concluded that the district court: (1) properly determined that ERISA preempts a City ordinance mandating a specific apprentice-training program; and (2) erred by awarding attorney’s fees under ERISA’s fee-shifting statute.

Third Circuit

Batchelor v. Rose Tree Media Sch. Dist., No. 13-2192 (July 17, 2014): The court found that retaliation claims related to enforcement under the Indviduals with Disabilities in Education Act must be exhausted before a court may assert subject-matter jurisdiction. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on July 16, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments, a couple days late this week:

Second Circuit

E.M. v. New York City Dept. of Ed., No. 11-1427 (July 11, 2014) (in IDEA case, concluding that district court improperly concluded that IEP was adequate by relying on retrospective evidence extrinsic to the IEP).

Fourth Circuit

Lefemine v. Wideman, No. 13-1629 (July 11, 2014) (reversing determination that successful plaintiff in 1983 First-Amendment case was not entitled to attorney’s fees). Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on July 7, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Sixth Circuit

Hescott v. City of Saginaw, No. 13-2103 (July 2, 2014) (ruling that district court erred denying attorney’s fees to Hescotts in their successful 1983 action claiming that the City had unconstitutionally seized their personal effects by demolishing their property).

Seventh Circuit

Scherr v. City of Chicago, No. 13-1992 (July 2, 2014) (affirming that 1983 suit against officer based on alleged Fourth-Amendment violation was properly dismissed). Continue reading →

Supreme Court To Hear Sign-Ordinance Case

Posted in Case Notes on July 1, 2014 By Kira Klatchko

This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert’s sign ordinance against a First-Amendment challenge. The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions.

The Court could use this case to clarify when a local ordinance is “content-based” or “content-neutral,” a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town’s ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs: Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 30, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established): Continue reading →

Third Circuit: Establishment-Clause Challenge To Existing Display Not Time-Barred

Posted in Case Notes on June 27, 2014 By Kira Klatchko

Bible Baptist Church Welcomes You! 1 Block –>

So reads the sign—decorated with a gold cross and white Bible—that the Borough of Shickshinny, Pennsylvania, allowed to be placed on its right-of-way.

A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause.

Tearpock-Martini’s lawsuit had a problem though.

Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law.

Is her suit time-barred? In a decision this week, the Third Circuit said that it is not: Continue reading →

The Supreme Court Strikes Down Buffer Zone Law

Posted in Case Notes on June 26, 2014 By Kira Klatchko

Barricade A local government can create a 35-foot buffer zone to restrict speech on a public street only if it has first made a serious effort to address the issue in other ways.

That’s the lesson of McCullen v. Coakley, the Supreme-Court decision today that strikes down a Massachusetts statute that makes it a crime to knowingly stand on a public way or sidewalk within 35 feet of a location where abortions are performed.

Although the Court found that the law is content-neutral—and therefore not subject to strict scrutiny—the Court ruled that the Commonwealth had “too readily foregone options” that would not substantially burden speech.

What are those options? Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 23, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Thayer v. City of Worcester, No. 13-2355 (June 19, 2014) (affirming denial of preliminary injunction against enforcement of city ordinances prohibiting coercive or risky behavior by panhandlers).

Second Circuit Continue reading →

Ninth Circuit: Ordinance Criminalizing Living in Car Is Unconstitutionally Vague

Posted in Case Notes on June 20, 2014 By Kira Klatchko

If you eat, talk on the phone, and escape the rain in your car, are you using the car “as living quarters either overnight, day-by-day, or otherwise?”

What if you load up the car with personal belongings for a camping trip? Or drive an RV to go on vacation?

In the Ninth Circuit’s view, a City of Los Angeles code provision designed to outlaw sleeping in a vehicle on City streets and parking lots may or may not criminalize all these activities and could lead to other selective enforcement—particularly against the homeless and poor. The court therefore ruled that the provision is unconstitutionally vague. The decision is Desertrain v. City of Los Angeles, No. 11-56957 (June 19, 2014).

Los Angeles Municipal Code Section 85.02 outlaws Continue reading →

Supreme Court Decides Employee-Speech Case

Posted in Case Notes on June 19, 2014 By Kira Klatchko

This morning, the Supreme Court decided Lane v. Franks, a case that this blog previously covered here. The Court ruled unanimously that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.

Image courtesy of Flickr by Mark Fischer (creative-commons license, no changes made).

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 16, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Third Circuit

Rosano v. Township of Teaneck, No. 13-1263 (June 10, 2014) (in action by current and former police officers against Township alleging violation of Fair Labor Standards Act because it did not pay proper overtime and provide compensation for attending daily roll calls and putting on and taking off uniforms, affirming grant of summary judgment for Township).

Seventh Circuit

Garofalo v. Village of Hazel Crest, No. 12-668 (June 12, 2014) (in action by former police sergeants, both white, alleging that the Village discriminated against them based on race by promoting a black officer to police chief, affirming summary judgment for Village).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 9, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Cady v. Walsh, No. 13-2040 (June 4, 2014) (finding that the court lacks subject-matter jurisdiction over interlocutory appeal in qualified-immunity case).

Fifth Circuit

Kagan v. City of New Orleans, No. 13-30801 (June 2, 2014) (affirming summary judgment for City in First-Amendment challenge brought by tour guides who objected to City licensing requirement).
Morgan v. Swanson, No. 13-40433 (June 3, 2014) (affirming grant of qualified immunity to school principal who prevented parent from distributing religious materials to other adults at school party; this substitutes for earlier opinion).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 2, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Sixth Circuit

Robertson v. Lucas, No. 12-3877 (May 28, 2014) (in case arising out of corrupted drug-trade investigation, affirming award of qualified immunity on malicious prosecution and false arrest claims, and affirming dismissal of Monell claim against Richland County and City of Cleveland).

Continue reading →

Tuesday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on May 27, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Gericke v. Begin, No. 12-2326 (May 23, 2014) (affirming denial of qualified immunity for police officers on First-Amendment retaliatory prosecution claim where plaintiff was arrested after she attempted to film a traffic stop).

Eighth Circuit

Walton v. Dawson, No. 12-4000 (May 20, 2014) (affirming in part and reversing in part denial of qualified immunity in failure-to-train claims against officers arising out of jail-cell attack that occurred after officers did not lock cell doors).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on May 19, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Second Circuit

Sherman v. Town of Chester, No. 13-1503 (May 16, 2014) (ruling that takings claim against the Town was ripe because seeking a final decision from the Town would be futile and because Town had removed case to federal court).
Morales v. City of New York, No. 13-2126 (May 16, 2014) (affirming dismissal of complaint against City alleging malicious prosecution, abuse of process, deprivation of right to fair trial, and deprivation of constitutional rights on account of race and color).
Disabled in Action v. Bd. of Elections in the City of New York, No. 12-4412 (May 14, 2014) (affirming that City Board of Elections violated Section 504 of the Rehabilitation Act and Title II of the ADA by failing to provide people with mobility or vision disabilities with meaningful access to voting program).

Continue reading →

Five Writing Tips That I Wish I Knew Earlier — Tip # 1: Stress Positions

Posted in Tips and Tactics on May 13, 2014 By Kira Klatchko

I wish I had learned some things earlier.

That’s especially true when it comes to my writing.

So I thought I’d share five writing tips that I wish I had known earlier.

The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels.

Tip # 1: Place important and new information at a sentence’s ending.

This one is counterintuitive: a sentence’s most valuable real estate is not where it starts but where it finishes. At the sentence’s ending, a reader naturally stops — it’s sometimes called a “stress position.” These natural pauses give a writer an opportunity: Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on May 12, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Jones v. City of Boston, No. 12-2280 (May 7, 2014) (in suit challenging police department’s drug-testing program as causing disparate impact based on race, reversing denial of summary judgment for plaintiffs on whether they had proved a prima facie case of disparate impact under Title VII).

Sixth Circuit

City of Pontiac Retired Employees Assoc. v. Schimmel, No. 12-2087 (May 5, 2014) (vacating order denying preliminary injunction and remanding on questions related to whether emergency manager could reduce and eliminate health-care benefits for retired City employees).

Continue reading →

A Case to Watch: City of San Jose v. Office of Commissioner

Posted in Case Notes on May 8, 2014 By Kira Klatchko

If you spend your time following baseball, local governments, and appellate litigation (as I do), the Ninth Circuit case of City of San Jose v. Office of the Commissioner of Baseball, No. 14-15139, is one to watch.

The issues are simple: the City of San Jose would like the Oakland A’s to relocate there, but MLB has refused to permit it.

Why?

According to the City, another team, the San Francisco Giants, “owns” the exclusive rights to San Jose. The City explained that MLB teams have an “exclusive territorial rights agreement,”one that the City claims “constitutes a blatant market allocation scheme that is illegal under the American antitrust laws in all other professional sports.”

The district court found that Continue reading →

Webinar on Town of Greece Decision

Posted in Uncategorized on May 6, 2014 By Kira Klatchko

On May 28th, IMLA, the State and Local Legal Center, and the National Conference of State Legislatures will host a free webinar on the Greece decision. Details and registration are here.

Round-up of Greece Analysis

Posted in Commentary on May 6, 2014 By Kira Klatchko

In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, ruling that the Town’s prayer practice is not an unconstitutional establishment of religion. This post tracks some commentary on the case:

SCOTUSblog has been providing analysis of the divided decision:

The stark difference between the majority opinion in the Allegheny County case and the Court’s new opinion in the Town of Greece case illustrated the progress made by Justice Kennedy toward the Court’s full embrace — although for differing reasons among five Justices who determined the outcome – of the “coercion” test in determining whether a government practice amounted to an “establishment of religion” in violation of the First Amendment.

Eugene Volokh of UCLA School of Law provides his reactions: Continue reading →

Supreme Court To Decide If Local Government’s Decision Is “In Writing”

Posted in Case Notes on May 5, 2014 By Kira Klatchko

In addition to addressing local-government prayer this morning, the Supreme Court also decided to hear and answer another question impacting local governments: when a city denies a request to place a cell tower, how formally must it act?

The Court granted cert in T-Mobile South, LLC v. City of Roswell, No. 13-975, which specifically asks what a local government must do to satisfy the Communications Act’s “in writing” requirement at 47 U.S.C. 332(c)(7)(B)(iii):

Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record

As the Eleventh Circuit explained in its decision, some circuit courts have ruled Continue reading →

Supreme Court Rules That Town’s Prayer Practice Is Constitutional

Posted in Case Notes on May 5, 2014 By Kira Klatchko

The Supreme Court has released its decision in Town of Greece v. Galloway, concluding that the Town’s prayer practice has a “permissible ceremonial purpose” and is “not an unconstitutional establishment of religion.”

Writing for the Court, Justice Kennedy ruled that the Town’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.”

Some highlights from his opinion: Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on May 4, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Bellone v. Southwick-Tolland Reg. Sch. Dist., No. 13-1341 (May 2, 2014) (affirming grant of summary judgment for school district in case brought by former employee alleging violations of Family and Medical Leave Act).

Second Circuit

Betts v. Shearman, No. 13-619 (May, 2, 2014) (affirming dismissal of complaint alleging false arrest, false imprisonment, abuse of process, malicious prosecution, and denial of right to fair trial).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on April 28, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

First Circuit

Green Mountain Realty Corp. v. Leonard, No. 13-2163 (Apr. 23, 2014) (finding that district court improperly granted summary judgment to Town on cell phone provider’s claim that Town “prohibited” it from providing service under 47 U.S.C. 332(c)(7) of the Communications Act).

Third Circuit

Hallsey v. Pheiffer, No. 13-1549 (Apr. 24, 2014) (reversing district court’s summary judgment for officers on fabrication, malicious prosecution, and coercion claims, in case arising out of suit brought by individual wrongly imprisoned for 22 years).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on April 21, 2014 By Kira Klatchko

As it happens, I’m not finding any published decisions involving local governments from last week. This is a change from recent weeks — see here and here. Readers: let me know if I’ve missed anything.

[Update: The Sixth Circuit did decide Bradley v. Reno, No. 13-3983 (Apr. 18, 2014). There, a state court found that an officer had probable cause to arrest Bradley, but a jury subsequently acquitted him of the charge. When Bradley later brought a 1983 action against the officer, the question was whether the probable-cause determination precluded Bradley from litigating the probable-cause issue under the doctrine of issue preclusion. The Sixth Circuit ruled that, per Ohio law, Bradley could litigate the question again — because Bradley had no opportunity to appeal the probable-cause ruling.]

Is Terminating an Employee for His Job-Performance-Related Testimony a Constitutional Violation?

Posted in IMLA Briefs on April 14, 2014 By Kira Klatchko

That question arises in Lane v. Franks, No. 13-483, a Supreme Court case in which IMLA and the International Public Management Association have now filed a brief.

The Eleventh Circuit ruled that the termination did not trigger First-Amendment scrutiny:

No one disputes that Lane was acting pursuant to his official duties as CITY’S Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment. That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on April 14, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Third Circuit

Thomas v. Cumberland County, No. 12-3959 (Apr. 11, 2014) (in suit alleging that the County failed to properly train officers to prevent attack by other inmates, vacating the district court’s order of summary judgment for the County because a reasonable jury could find that the County acted with deliberate indifference).

Sixth Circuit

Rouster v. Saginaw County, No. 13-1673 (Apr. 9, 2014) (affirming district court decision that medical staff was not deliberately indifferent to jailed individual’s medical needs).

Seventh Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on April 7, 2014 By Kira Klatchko

Here are last week’s published decisions involving local governments:

Second Circuit

The Bronx Household of Faith v. Bd. of Educ. of the City of New York, No. 12-2730 (Apr. 3, 2014) (reversing district court’s decision and ruling that school may refuse to allow its facilities to be used for religious worship). See this post from Evan Seeman and Dwight Merriam at the RLUIPA Defense blog.
T.M. v. Cornwall Central School District, No. 12-4301 (Apr. 2, 2014) (finding that district court erred as a matter of law in concluding that the school district was not required under the Individuals with Disabilties Education Act to offer student a mainstream extended school year program simply because it does not offer such a program.).

Fourth Circuit

EEOC v. Baltimore County, No. 13-1106 (Mar. 31, 2014) (finding that county retirement plan unlawfully Continue reading →

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

Posted in Commentary on April 7, 2014 By Kira Klatchko

By 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 →