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People v. The McGraw-Hill Companies, Inc. et al

Posted in Case Notes on By Gary Schons

[Editor’s Note: My colleague, Gary Schons, contributed this post. We hope to have more posts from Gary in the future. –Matt Schettenhelm]

One thing common to all appellate lawyers— they love to appeal.Gavel But, as all appellate lawyers know, the right to appeal is fixed by statute. (Trede v. Superior Court (1943) 21 Cal.2d 630.) Thus, our ability to practice our craft is dependent on the leave granted by the legislature. In this case, the issue before a California appellate court was whether a specific provision of the anti-SLAPP statute granting the right to an immediate appeal of an order granting or denying a special motion is effectively nullified by a separate provision of the statute making it wholly inapplicable to enforcement actions brought by state, county or city prosecutors. As the appellate court noted in the preamble to its decision, this issue was “thoroughly briefed,” and perhaps ominously, oral argument was “vigorous indeed.” I’ll bet it was. Continue reading →

 

Unqualified Win in Qualified Immunity Cases

Posted in Case Notes on By Lisa Soronen, Executive Director, SLLC

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 →

 

Appellate Advice from an Appellate Court

Posted in Tips and Tactics on By Ann Schwing

The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.law books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court.

Do’s and Don’ts for an Effective Appeal

DO:

1. Know what relief you want (and why).

2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.

3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, Continue reading →

 

Res Judicata and Full Faith and Credit Across State Lines and in Federal Court

Posted in Commentary on By Ann Schwing

When is a judgment a judgment for purposes of res judicata or the doctrine of full faith and credit when the judgment is obtained in one court and sought to be enforced in a different court?  Dictionary

Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought.

There may be a State and a circumstance in which every one of these possible answers is the right answer. Continue reading →

 

Errors on Appeal — Too Many Issues

Posted in Tips and Tactics on By Ann Schwing

Decisions across the U.S. identify, as one example of “bad appellate advocacy,” presenting too many issues on appeal.judicial bench The Seventh Circuit applied those words to a brief that presented “12 issues for review—many with sub-parts, for a total of 21 principal contentions. Posing so many issues ensures that each is superficially argued.” Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 911 (7th Cir. 1996). The court in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004), found much to criticize, finding itself “compelled to comment on the state of this appeal.” The court found itself Continue reading →

 

Seventh Circuit: City May Not Close Adult Bookstores

Posted in Case Notes on By Kira Klatchko

Closed signMay a city require adult bookstores but not other establishments to close between midnight and 10am every night and all day Sunday?

In Annex Books v. City of Indianapolis, No. 13-1500 (Jan. 24, 2014), the Seventh Circuit said no. It struck down the City of Indianapolis’s requirement, which a district court had previously upheld. Although the City claimed that the restriction would lead to fewer armed robberies at or near the bookstores, the court held that “cities must protect readers from robbers rather than reduce risks by closing bookstores.” In the court’s view, “[t]hat the City’s regulation takes the form of closure is the nub of the problem.”

First, the court found that the evidence supporting the City’s justification is “weak as a statistical matter”: the data “do not show that robberies are more likely at adult bookstores than at other late-night retail outlets.”

Second, the court noted that although Continue reading →

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here are last week’s published decisions involving local governments. NYcourt

Second Circuit

Sixth Circuit

(January 13, 2014, through January 17, 2014)

Credit: Image courtesy of Flickr by Tracy Collins (creative common license, no changes made)

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Happy New Year to all of our readers.

Last week was a slow one for the courts. The only significant action for local governments came from the Ninth Circuit:

 

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from December 23, 2013, through December 27, 2013:

Seventh Circuit

Ninth Circuit

Eleventh Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from November 25, 2013 through December 6, 2013:

Second Circuit

Fourth Circuit

Seventh Circuit

Ninth Circuit

 

 

Ninth Circuit: Officer Removed After Raising Safety Issues Does Not Have First Amendment Claim.

Posted in Case Notes on By Kira Klatchko

If a public employee reports departmental-safety concerns to his supervisor, and the employee is removed from duty for raising those concerns, does the employee have a viable First Amendment retaliation claim?Policecar

In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit ruled that a public employee did not have a viable First Amendment claim under the particular circumstances there. The court ruled that, viewing all the evidence in the light most favorable to the employee, he was speaking as a public employee, not a private citizen.

The case involved a City police officer, Brian Hagen, who noticed that members of his SWAT team were often firing their weapons accidentally and negigently. Hagen tried to make his concerns about the team “as public as possible” by sending e-mails and raising the issue  in meetings. Eventually, Hagen was removed from the K-9 team.

Hagen claimed that the City and senior officers had retaliated against him for exercising his First Amendment rights. Continue reading →

 

Fourth Circuit: Can a County Limit Waste Disposal to Public Landfills?

Posted in Case Notes on By Kira Klatchko

A County ordinance provides that waste generated in the County can be disposed at only a single location — a publicly owned landfill:Landfill

The dumping or depositing by any person at any place other than at the designated facilities of any acceptable waste generated within the County is prohibited.

The County crafted the ordinance to further many public benefits: to conserve resources, to prevent pollution, and to protect the public health, safety, and well-being. For the public landfill, the ordinance also ensured a revenue stream.

But for a private landfill operator located just two miles from the County line, the ordinance was a real problem. The ordinance led to a significant decrease in its business.

The operator sued the County. It argued that the County ordinance violates the dormant-commerce clause and the equal-protection clause of the federal constitution. Is the operator correct?

In Sandlands C&D LLC v. County of Horry, No. 13-1134 (Dec. 3, 2013), the Fourth Circuit ruled against the operator. It upheld the district court’s grant of summary judgment for the County.

Applying the Supreme Court’s decision in United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 346 (2007), the court ruled that Continue reading →

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from November 18, 2013 through November 22, 2013:

First Circuit:

Seventh Circuit:

 

First Circuit: Does a Local Government Have Authority To Regulate Foreclosures?

Posted in Case Notes on By Kira Klatchko

Many cities have struggled with the effects of foreclosures.

But given the complex mix of state laws that often governs the issue, how much authority do local governments have in this area?

A First Circuit case, Easthampton Savings Bank v. City of Springfield, No. 12-1917 (Nov. 22, 2013) addresses that question.Foreclosure

Six banks sued the City of Springfield, Massachusetts, after it had adopted two foreclosure ordinances. The ordinances require:

  1. banks to maintain property during the foreclosure process and to provide a $10,000 cash bond to the City; and
  2. banks and homeowners to engage in a mediation prior to foreclosure.

The banks claimed that the City’s requirements violated the Contracts Clause of the federal constitution and various provisions of Massachusetts law. Although the district court had entered judgment for the City, the First Circuit ruled on Friday that it was not yet prepared to do the same — at least not until the Massachusetts Supreme Judicial Court had the chance to weigh in. The First Circuit therefore certified the dispositive state-law questions to that court.

Image courtesy of Flickr by Kevin Dooley.

 

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from November 11, 2013 through November 15, 2013:

First Circuit

Second Circuit

  • Lynch v. City of New York, No. 12-3089 (Nov. 15, 2013) (affirming summary judgment for NYPD in Fourth-Amendment challenge to City policy requiring breathalyzer test for any officer whose firearm discharge results in death or injury; testing under the policy is a reasonable “special needs” search).

Seventh Circuit

D.C. Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from November 4, 2013 through November 8, 2013:

Seventh Circuit

 

Seventh Circuit: Glance After Officers Open Wrong Apartment Door Not “Search”

Posted in Case Notes on By Kira Klatchko

In Balthazar v. City of Chicago, No. 12-3378 (Nov. 8, 2013), the Seventh Circuit addressed an interesting Fourth-Amendment question: is it a “search” for officers to mistakenly open the wrong apartment door and glance inside? Judge Posner said that in this case, it likely was not:

Police forced open the door of a residence by mistake, realized their mistake immediately (in fact before the door opened—for remember that Beckman tried to check the forward motion of the battering ram), and left immediately. With the door open in front of him he couldn’t have avoided seeing into the apartment without closing his eyes (which would have been dangerous). But having learned before looking that it was the wrong apartment, he wasn’t using his eyes to search for anything. Seeing can be searching, but isn’t always. Even before the door fell open, Beckman knew there was nothing to search for in the plaintiff’s apartment. . . . If you know you’re in the wrong place—a place you’re not authorized to search or want to search—the unavoidable glance through the open door is not a search.

 

Seventh Circuit: Title II of Americans with Disabilities Act Does Not Reach Employment Discrimination

Posted in Case Notes on By Kira Klatchko

Does Title II of the Americans with Disabilities Act apply to employment-related discrimination claims, even though Title I of the Act specifically addresses such claims?

Answering this “question of first impression” in the circuit, in Brumfield v. City of Chicago, No. 11-2265 (Nov. 6, 2013), the Seventh Circuit today joined the Ninth and Tenth Circuits in concluding that Title II does not extend to employment-discrimination claims. Such claims must be brought under Title I.

The court determined that because, read in context, Title II unambiguously does not reach employment-discrimination claims, the court need not defer to the Attorney General’s rule to the contrary.  The court acknowledged that the Eleventh Circuit has reached the opposite conclusion, but the court found that circuit’s analysis unpersuasive.

 

 

Seventh Circuit: RLUIPA Does Not Mandate That County Allow Camp in Residential Area

Posted in Case Notes on By Kira Klatchko

Eagle Cove believed that its religion required it to hold its Bible camp in only one place: on its lake-side property in Oneida County, Wisconsin. But the County had zoned the property for residential use only.

When Eagle Cove asked the County to re-zone the property, the County refused.

When Eagle Cove asked for a conditional use permit so that it could hold the Bible camp anyway, the County denied that too.Wisc-lake

Did the County’s denials violate the Religious Land Use and Institutionalized Persons Act? In Eagle Cove Camp & Conference Center v. Town of Woodboro, No. 13-1274 (Oct. 30, 2013), the Seventh Circuit said “no.” It affirmed the grant of summary judgment for the County and for the Town of Woodboro.

No Total Exclusion

One provision of RLUIPA provides that Continue reading →

 

Can a local government obtain federal trademark protection for its official insignia?

Posted in Roundup on By Kira Klatchko

The Federal Circuit recently said no, in a case highlighted today at Julie Tappendorf’s must-read blog Municipal Minute. In the case, the District of Columbia and the City of Houston attempted to trademark these two marks:

DCCouncil_Seal_smallHoustonseal

The court ruled that Section 2(b) of the Lanham Act ( 15 U.S.C. 1052(b)) prohibits the local governments from registering the marks. It provides:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it . . . [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.

The court rejected Houston’s argument that read in context, the statute does not prevent the City from registering its own seal. It also rejected D.C.’s claim that it may register the mark because of international treaty requirements.

 

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Second Circuit

Fifth Circuit

Seventh Circuit

 

A Supreme Court DIG, and a Lesson About Appellate Jurisdiction

Posted in Case Notes on By Kira Klatchko

The first significant case affecting local governments in this new Supreme Court term  — Madigan v. Levin — ended poorly. The Court resolved the case with a DIG — the Court dismissed it as improvidently granted. Supreme Court3

What went wrong? And what can we learn from it about appellate jurisdiction?

An Important Question

The case had all the hallmarks of a classic Supreme Court case.

The question presented was important. It asked whether when a state or local government employee alleges that his employer has discriminated against him because of his age, the Age Discrimination in Employment Act (“ADEA”) provides his exclusive remedy, or whether he may also bring a claim under 42 U.S.C. 1983 because the discrimination violates the Constitution’s Equal-Protection Clause.

The question had divided the lower courts. The Seventh Circuit acknowledged that its holding — that the ADEA does not prevent the employee from bringing a Section 1983 claim — created a deep circuit split.

And it had far-reaching implications. It could literally impact every state and local government.

What Went Wrong?

So why would the Court, after granting cert. and hearing oral argument, suddenly change its mind and toss the case?

Continue reading →

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

First Circuit

Seventh Circuit

  • Jiminez v. City of Chicago, No. 12-2779 (Oct. 7, 2013) (affirming district court’s denial of City’s motion for a new trial and for judgment as matter of law based on alleged july-selection and evidentiary errors, in case where jury had awarded Jiminez $25 million in compensatory damages).
 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

First Circuit

Fifth Circuit

Eleventh Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Fifth Circuit

Sixth Circuit

Tenth Circuit

Eleventh Circuit

  • Carter v. City of Melbourne, No. 12-15337 (Sept. 23, 2013) (finding City not liable for unlawful termination of former officer because decisions were not made by a “final policymaker” for the City, and rejecting other claims, including that officer was terminated for his First Amendment activities).

 

 

Ninth Circuit: City Not Entitled to Summary Judgment on Housing Discrimination Claims

Posted in Case Notes on By Kira Klatchko

GavelThe Ninth Circuit issued its decision Friday in Pacific Shores Properties, LLC v. City of Newport Beach, No. 11-55460. In the case, plaintiffs alleged that a City ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause because the ordinance had the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential districts. Although the district court had granted summary judgment for the City, the Ninth Circuit today reversed that decision. It concluded that the plaintiffs had created a triable issue of fact as to whether the City enacted the ordinance to discriminate against them, and whether its enactment and enforcement harmed them.

I wrote an amicus brief on behalf of the League of California Cities, which urged the court to find that evidence of arguably discriminatory intent or motive in adopting a city ordinance was not, standing alone, enough to invalidate a facially neutral ordinance. But, the court found the district court should have taken into account circumstantial evidence of discriminatory motivation—as expressed by individual council members participating in the decision—when reviewing what was otherwise a facially neutral ordinance restricting group homes. It also found, among other things, that the plaintiffs were not required to identify similarly situated individuals who were treated better than those subjected to the ordinance.

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

 

Monday Morning Review: Local Governments in the Federal Courts of Appeals

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Second Circuit

Ninth Circuit

 

 

 

Monday Morning Review: Local Governments in the Federal Courts of Appeals

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Eighth Circuit

Ninth Circuit

 

 

Eighth Circuit: Restricting Bible Distribution During Festival Likely Violates First Amendment

Posted in Case Notes on By Kira Klatchko

8th Circuit: Park did not adequately justify the need to limit literature distribution

8th Circuit: Park did not adequately justify the need to limit literature distribution

An evangelical Christian, Brian Johnson, sought to distribute Bibles at a gay-pride festival in a public park.

The park board would not allow it.

It had adopted a policy limiting literature distribution to confined areas, due to security concerns and the festival’s size.

Johnson claimed the policy violated the First Amendment, and sought an injunction barring its enforcement. In a 2-1 decision released Wednesday, Johnson v. Minneapolis Park and Recreation Bd., the Eighth Circuit ruled that Johnson would likely prevail on his claim.

Continue reading →

 

Ninth Circuit: Local Government’s Tenant-Protection Program Is Constitutional.

Posted in Case Notes on By Kira Klatchko

9th Circuit: Landlords do not have a viable constitutional claim against City housing program

9th Circuit: Landlords do not have a viable constitutional claim against City housing program

Your community’s housing conditions are in crisis. Too many landlords ignore codes. They disregard tenants’ concerns. And their properties are hardly habitable. But they continue to collect rent—from tenants with little capacity to protect themselves.

So your local government fashions an innovative program, one that empowers tenants. It allows tenants living in troubled properties to withhold a portion of their rent and to use it for needed repairs.

Landlords sue. They claim that your program violates their federal substantive due process rights. Do they have a winning constitutional argument?

Not according to the Ninth Circuit, which ruled Monday in Sylvia Landfield Trust v. City of Los Angeles, No. 11-55904, slip op. (Sept. 9, 2013), that the City of Los Angeles’s Rent Escrow Account Program is constitutional.

Continue reading →

 

Regulating Illegal Immigration With Local Housing Ordinances

Posted in Case Notes on By Kira Klatchko

Local government regulation of immigration through housing ordinances has divided the courts.

Local government regulation of immigration through housing ordinances has divided the courts.

Can a local government prohibit the leasing of housing to persons who entered the United States illegally?

Since June, three federal courts of appeals have tackled that difficult question—and reached different results.

The decisions present a range of perspectives on whether local housing ordinances “conflict” with federal law or intrude upon a “field” reserved to the federal government. They highlight the uncertain contours of the preemption doctrine—and demonstrate the risk facing any local government that regulates in this space.

Continue reading →

 

Regulating Adult-Oriented Businesses: Demonstrating Your Regulations Are Effective.

Posted in Case Notes on By Kira Klatchko

Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute.

Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute.

Crime. Disease. Decreased property values.

Adult-oriented businesses are disrupting your community.

But you have a plan.

You have fashioned a licensing scheme that prohibits nudity and the sale of alcohol at these establishments.

You know that courts have allowed zoning regulations that address the “secondary effects” of these businesses. You also know that regulating these businesses can violate the First Amendment.

But how closely will a court examine whether your regulations effectively eliminate these adverse effects?

Continue reading →

 

How To Close a First Amendment Public Forum: Does a Local Government’s Intent Matter?

Posted in Case Notes on By Kira Klatchko

Fourth Circuit: a local government can “close” a public forum with a neutral policy, regardless of its intent.

Fourth Circuit: a local government can “close” a public forum with a neutral policy, regardless of its intent.

Your City has flag standards on light poles. They line the City streets.

For over 15 years, you have allowed private parties to use this property to place their own flags.

Now you have a problem.

A group wants to use this City property to fly the Confederate flag during a City parade. The public is fiercely opposed.

After your City council first approved the request, it changed course. Its new policy restricts flag-standard use to three flags: the American, State, and City flags.

The group sued. It claimed that the City’s change violates its First Amendment rights.

Can you successfully defend the City’s policy?

In a similar case, the Fourth Circuit recently said yes.

Continue reading →