Federal Agency Deference: SLLC Argues Less is More

If the war to overturn Chevron v. NRDC (1984) is to be won, many battles will probably have to be won first.

 While overturning Chevron is not on the table in Coventry Health Care of Missouri v. Nevils, limiting it is. The State and Local Legal Center (SLLC) asked the Court in its amicus brief to rule that Chevron deference does not apply when an agency is construing the scope of a statute’s preemption provision, absent Congress’s assent.  

 In Chevron v. NRDC the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.  Continue reading


Supreme Court Ruling in Railroad 4-R Act Case Mixed for State and Local Government

In Alabama Department of Revenue v. CSX Transportation the Supreme Court held 7-2 that railroads can be compared to their competitors when determining whether a tax is discriminatory in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act).  Different taxes paid by railroads and their competitors must be compared with determining whether a tax railroads pay is discriminatory.  The State and Local Legal Center (SLLC) filed an amicus brief in this case disagreeing with the Court’s first holding and agreeing with its second holding.

The 4-R Act prohibits state and local governments from imposing taxes that discriminate against rail carriers (railroads).  Railroads in Alabama pay a four percent sales tax on diesel fuel as do other commercial and industrial purchasers.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  Water carriers pay no sales or excise tax on diesel fuel.  Continue reading


Phantom Law Recommended to Supreme Court

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


Local Governments Mostly Win Cell Tower Supreme Court Case

The City of Roswell lost its case before the Supreme Court on what some might describe as a mere technicality–but overall local governments won.


In T-Mobile South v. City of Roswell the Supreme Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.  The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include the council meeting minutes.


The Court agreed with the position in the State and Local Legal Center (SLLC)’s amicus brief that the reasons for a local government’s decision need not be in the same letter or document that denies the application and that council meeting minutes can be a sufficient source for the reasons for the denial.   The Court disagreed, however, with the SLLC’s argument that the council minutes need not be issued contemporaneously with the document denying the wireless provider’s application.


T-Mobile applied to construct a 108-foot cell tower in a residential zoning area.  Two days after a council hearing on the application, where city councilmembers voted to deny the application and stated various reasons for why they were going to vote against it, Roswell sent T-Mobile a brief letter stating that the application was denied and that T-Mobile could obtain hearing minutes from the city clerk.  Twenty-six days later the minutes were approved and published.


The TCA requires that a state or local government’s decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”


The majority of the Court, in an opinion written by Justice Sotomayor, held that local governments have to provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence.  The Court rejected, however, T-Mobile’s argument that the reasons must be set forth in a formal written decision denying the application instead of council meeting minutes because nothing in the TCA “imposes any requirement that the reasons be given in any particular form.”  But the Court also held that, because wireless providers have only 30 days after an adverse decision to seek judicial review, the council meeting minutes setting forth the reasons have to be issued “essentially contemporaneous[ly]”with the denial.


The Court’s ruling that written minutes can meet the TCA’s “in writing” requirement is favorable to local governments, many of which routinely compile meeting minutes regardless of whether a cell tower application is being considered.  But the Court’s requirement that a local government issue a denial letter and minutes at more or less the same time will be new to many local governments, and, as Chief Justice Roberts points out in his dissenting opinion, “could be a trap for the unwary hamlet or two.”


Following this decision, local governments should not issue any written denial of a wireless siting application until they (1) set forth the reasons for the denial in that written decision, or (2) make available to the wireless provider the final council meeting minutes or transcript of the meeting at which the action was taken.


The Roberts’ Court has been frequently characterized as “pro-business.”  Justice Roberts’ dissent belies that viewpoint.  His opinion repeatedly refers to T-Mobile’s savvy and culminates in this sarcastic assessment of how T-Mobile likely suffered no harm by receiving the minutes after the denial:  “T-Mobile somehow managed to make the tough call to seek review of the denial of an application it had spent months and many thousands of dollars to obtain, based on a hearing it had attended.”


Tim LayJessica Bell, and Katharine Mapes of Spiegel & McDiarmid in Washington, D.C., wrote the SLLC’s brief which was joined by the National League of Cities, the United States Conference of Mayors,  the National Association of Counties, the International City/County Management Association, and the International Municipal Lawyers Association.



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 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


Does the ADA Apply to Arrests?

The Fourth Amendment applies to arrests, no question about it.  What about the Americans with Disabilities Act (ADA)?  Specifically, do individuals with mental illnesses have to be accommodated under the ADA when being arrested?  The Ninth Circuit said yes and the Supreme Court has agreed to review its decision in City & County of San Francisco v. Sheehan.Gavel

When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated.  When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her.

Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.

Sheehan argued that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room.  Her proposed accommodations included:  respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation

The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests. 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


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


Upwind v. Downwind States: Winner is Downwind States!

Given the Supreme Court’s prominent role in deciding important issues of the day, it is easy to get caught up in the latest juicy Court mishappollutionJustice Scalia erroneously depicted precedent in his dissent in EPA v. EME Homer City Generation, which had to be corrected. But don’t let that be the reason you read this blog post.  This case is important for local governments.

The Clean Air Act’s Good Neighbor Provision prohibits upwind states from emitting air pollution in amounts that will contribute significantly to downwind states failing to attain air quality standards.  In EPA v. EME Homer City Generation the Supreme Court resolved two issues related to the Good Neighbor Provision.  Justice Ginsburg wrote the 6-2 opinion.

The Court first considered how responsibility for air pollution should be allocated. Continue reading


Supreme Court’s Affirmative Action Ruling Likely To Affect Local Government

The Supreme Court’s recent affirmative action ruling should be viewed through the lens of public employment not just public universities.Supreme Court3

In Schuette v. Coalition to Defend Affirmative Action the Supreme Court held 6-2 that voters may by ballot prohibit affirmative action in public universities admission decisions.  While this case was limited to the use of race in public university admission decisions, Michigan’s constitutional amendment also prohibits the use of racial-preference in state and local government employment and contracting.  Presumably, these provisions are also constitutional.  As NCSL’s Affirmative Action:  State Action chart describes, a number of states prohibit the use of affirmative action in local government employment and contracting.

In 2003 in Gratz v. Bollinger and Grutter v. Bollinger, 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


Seventh Circuit: City May Not Close Adult Bookstores

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

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

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:



Ninth Circuit: City Requirement That Cell-Tower Company Obtain Voter Approval Upheld

When T-Mobile sought to place a cell tower in a park owned by the City of Huntington Beach, California, the City granted the company all the regulatory approvals it required. But the City also informed T-Mobile that before it would finally lease the company the rights to the City property that it needed, the company must first obtain approval from City voters, under an amendment to the City charter known as Measure C.CellTower

T-Mobile refused. It claimed that Section 332(c)(7) of the Communications Act, 47 U.S.C. § 332(c)(7),  preempts this City requirement.

Is T-Mobile correct?

Not according to the Ninth Circuit, which decided Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) last week. The court ruled that because Section 332(c)(7) “applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner,” it does not preempt this local requirement, which concerns only how the City may lease its property.

Enacted in 1990, Measure C states: Continue reading


Monday Morning Review: Local Governments in the Federal Appellate Courts

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.

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?

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

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?

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

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

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”

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.


Supreme Court Hears Argument in Town of Greece

Today, the Supreme Court heard argument in Town of Greece v. Galloway, No. 12-696, which asks whether the Town’s legislative-prayer practice violates the Establishment Clause. We previously discussed the case here.

Here is a transcript of the oral argument.

And here is a recap from Lyle Denniston. He concludes by building on a comment from Justice Kagan:

Justice Kagan tried to sum up: Isn’t the question here, she said, whether public meeting prayers with references to Jesus Christ “will be allowed in a public town session like this one?”  When Laycock agreed that that was the issue, Kagan said it was a hard one, “because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways….And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”

In the coming weeks of deliberation in private, the Justices’ challenge may well begin and end with how to keep from making the problem worse.  And, at that point, leaving Marsh v. Chambers intact, allowing local governments to have prayers just as state legislatures and Congress can, might be the least cause of public agitation.




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

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

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?

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:


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.



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?



Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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?

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Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

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).



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:”

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

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

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

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

Eighth Circuit

Ninth Circuit



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

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.

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Supreme Court Decisions a Local-Government Attorney Might Read Again – Koontz

If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz.

If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz.

With the Supreme Court recently concluding its 2012 term, now is a good time to look back.

You have likely heard plenty about the Court’s high-profile holdings, including that:

But it’s often the decisions that slip by quietly that impact you most. We’ll be publishing a series of posts about decisions that didn’t get a lot of press, but that are worth revisiting.

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

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?

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Legislative Prayer and Local Governments: Do You Begin Every Meeting by Violating the Constitution?

The Supreme Court will evaluate local-government prayer practices this term.

The Supreme Court will evaluate local-government prayer practices this term.

If your community starts its government meetings with a prayer, it might be violating the Constitution.

In a case that the Supreme Court will consider in the coming term, Town of Greece v. Galloway, 12-696, the Court will decide whether a local government’s legislative prayer practice runs afoul of the Establishment Clause.

The Second Circuit held that the Town of Greece’s prayer practice is unconstitutional because “an objective, reasonable person would believe [it] had the effect of affiliating the town with Christianity.”

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

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.

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