Archives

What Happens Now to Supreme Court Transgender Bathroom Case?

Posted in Case Notes Commentary on By Lann McIntyre

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter, DOE interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boys’ bathroom. He sued the district arguing that it discriminated against him in violation of Title IX. Continue reading →

 

SCOTUS to Decide Whether Intervenors Must Have Standing

Posted in Case Notes Commentary IMLA Briefs on By Lann McIntyre

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

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

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

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

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

Continue reading →

 

Travel Ban: What’s Next?

Posted in Commentary on By Lann McIntyre

On February 9 the Ninth Circuit refused to stay a district court’s temporary restraining order disallowing the President’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

 Washington and Minnesota sued President Trump claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. The residents of cities and counties and their families have been affected as well by this executive order.

 The government argued that the President has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed stating: “There is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.” 

 The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.” Continue reading →

 

Supreme Court Will Decide Whether Same-Sex Marriage Bans are Unconstitutional

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

On Friday the Supreme Court elevated this term from mostly meat and potatoes to historic by agreeing to hear four same-sex marriage cases.  The Court will decide whether it is constitutional for states to prohibit same-sex marriage and whether states may refuse to recognize same-sex marriages lawfully performed out of state.

 

While the Court refused to hear a number of cases presenting the same issues earlier in the term, these grants came as little surprise.  Between then and now the Sixth Circuit ruled that same-sex marriage bans are constitutional, making it the only federal circuit to consider this question and reach that conclusion.  The four cases the Court granted came out of each state in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee).

 

Currently, same-sex marriages are allowed in 36 states.  In some of these states legislatures have passed laws recognizing same-sex marriage, in other states courts have struck down laws disallowing same-sex marriage.

 

The Court will hear oral argument in these cases at the end of April and will issue a decision by the end of June.

State and local governments, as issuers of marriage licenses and as employers, will be affected by the Court’s decision in these cases.  And the legal test that the Court applies to determine the outcome of these cases will have implications for other cases brought by gays and lesbians.

 

SCOTUSblog editor Tom Goldstein predicts that the Court will rule that same-sex marriage bans are unconstitutional.  In his opinion, just a few years ago, the Court may have only had one Justice willing to rule this way.  What has changed?  He suggests the following:  “The challenge to Proposition 8 [California’s same-sex marriage ban] . . . required that measure’s defenders to put forward actual evidence in court to justify the claim that same-sex marriage was somehow harmful.  The fact that they so publicly failed to do so was, to my mind, the most significant development in this movement.”

 

SLLC Amicus Brief Contemplates Fourth Amendment Facial Challenges, Hotel Registry Ordinance, and More…

Posted in IMLA Briefs on By Lisa Soronen, Executive Director, SLLC

The State and Local Legal Center’s (SLLC) Supreme Court amicus brief in Los Angeles v. Patel, which IMLA joined, is all that you expect from an amicus brief…and more.  It makes not one but all the usual amicus arguments:  don’t rule that state and local governments can be sued for yet another thing, if you rule against the city in this case many other cities and states will be affected, and a ruling against the city will likely impact many similar but unrelated statutes and ordinance. hotel   

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 Ninth Circuit agreed, because the ordinance fails to expressly provide for pre-compliance judicial review before police can inspect the registry.   

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Los Angeles v. Patel arguing that Fourth Amendment facial challenges should be disfavored and that if the ordinance in this case is unconstitutional similar hotel registry ordinances across the country—and laws and ordinances requiring record keeping and inspection of other businesses—may be unconstitutional. 

A facial challenge to the ordinance in this case requires a court to determine whether all searches that might be conducted pursuant to the ordinance are unconstitutional (as opposed to an as-applied challenge where the court would decide whether a particular search under the ordinance violates the Fourth Amendment). 

The SLLC argues that Fourth Amendment facial challenges don’t make sense because whether a search violates the Fourth Amendment depends on whether it is reasonable, which is necessarily a fact-based determination.  Under some set of facts almost any search would be reasonable.  For example, depending on the facts, warrantless searches of hotel registries could be reasonable under the “community care-taking exception,” because the registry is “in plain view,” or because of “exigent circumstances.” Continue reading →

 

Heien v. North Carolina – A Win, But Not a Free Pass

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

In Heien v. North Carolina the Supreme Court held that a reasonable mistake of law can provide reasonable suspicion to uphold a traffic stop under the Fourth Amendment.

A police officer pulled over a car that had only one working brake light because he believed that North Carolina law required both brake lights to work.  The North Carolina Court of Appeals, interpreting a statute over a half a century old, concluded only one working brake light is required. highway stop

When the vehicle’s occupants behaved suspiciously, the officer asked to search the car.  They consented, and the officer found cocaine.  The owner of the car argued that the stop violated the Fourth Amendment because driving with one working brake light doesn’t violate North Carolina law.

The Supreme Court has long held that reasonable mistakes of fact do not undermine Fourth Amendment searches and seizures.  Justice Roberts reasoned in this 8-1 decision:  “Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.” Continue reading →

 

Supreme Court Review of Same-Sex Marriage (Almost) Inevitable

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

Even though there was no disagreements among the federal circuit courts of appeals at the time, Court watchers were shocked with the Supreme Court denied certiorari in a series of cases striking down same-sex marriage bans.  All eyes then turned to the Ninth and Sixth Circuits who had pending cases.  The next day the Ninth Circuit struck down Nevada’s and Idaho’s ban.  On November 6 the Sixth Circuit became the first federal circuit court to uphold bans in four states (Michigan, Tennessee, Ohio, and Kentucky).14692401305_ea57b7b223

In 12 bullet points Lyle Denniston of SCOTUSblog summarizes the Sixth Circuit’s majority opinion.  Judge Sutton eloquently explains why he parted company with his colleagues who decided the other cases:  “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.  Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

While the Supreme Court doesn’t resolve every circuit split immediately, given the significance of this issue it would be shocking if the Court didn’t resolve it shortly.  As Lyle Denniston describes on SCOTUSblog this does not necessarily mean that the Court will hear the Sixth Circuit’s case—the Ninth Circuit ruling could also be appealed or the Court could grant review in a case pending, not yet decided, from another circuit.

But the mostly likely outcome (now that we know none of the plaintiffs will ask all of the Sixth Circuit judges to rehear the case) is that the Court will accept the Sixth Circuit case for review.

So maybe the only question is will the Court hear the case this term or next? One petition has already been filed.  If all petitions and responses are ready for the Justices by their January 9 conference this case will be heard and decided by the end of June.

(Photo courtesy of Flickr by Stefan Ogrisek, creative-commons license, no changes made).

 

Supreme Court Accepts Obamacare Case

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

Last Friday the Supreme Court’s docket went from boring to big with the grant of just one case:  King v. Burwell.  The issue in this case is whether tax credits for low and middle income health insurance purchasers are available under the Affordable Care Act (ACA) if insurance is purchased on a federal exchange rather than a state exchange.  Only 16 states and the District of Columbia have established exchanges. Supreme Court3

The ACA makes tax credits available to those who buy health insurance on exchanges “established by the State.”  The Internal Revenue Service (IRS) interpreted that language to include insurance purchased on federal exchanges too.

The Fourth Circuit in King v. Burwell upheld IRS’s interpretation, concluding that “established by the State” is ambiguous, when read in combination with other sections of the ACA, and could include federal exchanges.  The “board policy goals of the Act,” persuaded the court that the IRS’s interpretation was permissible.

The implications of the Supreme Court ruling that health insurance purchased on federal exchanges is not eligible for subsidies is huge.  Many people who want to buy insurance on the exchange would no longer be able to afford it without the subsidy.  And many who don’t want to buy insurance, depending on their income, would no longer be subject to the individual mandate that penalizes people for not buying insurance.  Similarly, large employers that don’t offer health insurance to fulltime employees would no longer have to pay a penalty.

More significantly, the Fourth Circuit (and many others) predict the ACA would “crumble” if tax credits are unavailable on federal exchanges.  The ACA bars insurers from denying coverage or charging higher premiums based on a person’s health.   The tax credit combined with the individual mandate was intended to create “an influx of enrollees with below-average spending for health care,” which would counteract adverse selection, where individuals disproportionately likely to use health care drive up the cost.  Such an influx is unlikely without the subsidy.

The Supreme Court generally hears cases when there is a circuit split, meaning two federal courts of appeals have decided the same issue differently.  Many were surprised when the Court agreed to hear this case given there is currently no circuit split, especially considering that last month the Court refused to hear a series of cases challenging the constitutionality of same-sex marriage bans.  However, the Court also accepts cases involving “important question[s] of federal law,” which this case seems to raise.

On the same day in July a three-judge D.C. Circuit panel ruled opposite to the Fourth Circuit.  The entire D.C. Circuit was going to rehear the case, but it has been asked to not rule in that case pending Supreme Court resolution of King v. Burwell.

Wondering how the Supreme Court may rule?  SCOTUSblog offers an excellent symposium on this topic.

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

 

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

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

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

Posted in Commentary on By Lisa Soronen, Executive Director, SLLC

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 →

 

What’s Next for Same-Sex Marriage?

Posted in Commentary on By Lisa Soronen, Executive Director, SLLC

For the six reasons Lyle Denniston describes on SCOTUSblog, the Supreme Court’s announcement on Monday that it would not hear any of the seven petitions striking down same-sex marriage bans was stunning.5554035521_f6b59ccafa_n  Even though there was no circuit split, conventional wisdom indicated the Court would decide the issue because of its importance and because both sides asked the Court for review.

Amy Howe also of SCOTUSblog and Scott Michelman writing on SCOTUSblog speculate as to the why the Court’s liberals and conservatives may have decided not to get involved in the issue now.  In short, the liberals had nothing to lose by waiting, and both side face uncertainty about Justice Kennedy’s position on the issue.

To understand where were are today with same-sex marriage a timetable is helpful.

  • On Sunday, 19 states recognized same-sex marriage.
  • On Monday, 11 more states were added from the Fourth (Virginia, West Virginia, North Carolina, and South Carolina) Seventh (Wisconsin and Indiana) and Tenth Circuits (Utah, Oklahoma, Colorado, Kansas, and Wyoming).
  • On Tuesday 5 more states were added when the Ninth Circuit (Idaho, Nevada, Alaska, Arizona, and Montana) struck down the Idaho and Nevada same-sex marriage bans.  (Implementation of this decision is still being worked out).

Technically, Continue reading →

 

Supreme Court Long Conference Results Are In!

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

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 discrimination.  Continue reading →

 

IMLA Files Brief in Wyatt v. Gonzalez

Posted in IMLA Briefs on By Kira Klatchko

On Friday, IMLA filed its brief in Wyatt v. Gonzalez,judicial bench 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 →

 

Supreme Court Preview for Local Governments

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

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

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

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

 

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

Posted in IMLA Briefs on By Lisa Soronen, Executive Director, SLLC

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

“It isn’t fair.”

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

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

Continue reading →

 

Supreme Court Didn’t Overrule Abood

Posted in Commentary on By Lisa Soronen, Executive Director, SLLC

Supreme Court cases are usually known for what they hold.5554035521_f6b59ccafa_n  Harris v. Quinn will forever be known for what it did not hold.  The Court did not overrule Abood v. Detroit Board of Education, a 35-year old precedent that is a cornerstone of public sector collective bargaining.  But it certainly foreshadowed its demise.

In Harris v. Quinn the Supreme Court held 5-4 that the First Amendment prohibits the collection of an agency fee from home health care providers who do not wish to join or support a union.  Continue reading →

 

Do Buffer Zones Survive After McCullen?

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

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

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

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

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

 

Supreme Court To Hear Sign-Ordinance Case

Posted in Case Notes on 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.SupremeCourt2 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 →

 

The Supreme Court Strikes Down Buffer Zone Law

Posted in Case Notes on By Kira Klatchko

BarricadeA 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 →

 

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

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

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

 

Lane v. Franks: The Good, the Bad, the Ugly

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

The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.5554035521_f6b59ccafa_n

The good:  The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor.

The bad:  The Court read “official job duties” narrowly to exclude speech about information merely learned at the job.

The ugly:  The Court doesn’t decide the obvious next question:  is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment? Continue reading →

 

Supreme Court Decides Employee-Speech Case

Posted in Case Notes on By Kira Klatchko

This morning, the Supreme Court decided Lane v. Franks, a case that this blog previously covered here.7432008582_3c5d6429f6_n 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).

 

Will Statutes of Repose Make a Come Back?

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

If preemption is your passion, this Supreme Court term has been a disappointment.Supreme Court3 CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one.

In CTS Corp. v. Waldburger, the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose. Continue reading →

 

Paid to Wait: Supreme Court to Decide

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

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

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

 

Multiple Taxation Vexation

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

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

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

 

Roadmap for Constitutional Prayer at City Council Meetings

Posted in Commentary on By Lisa Soronen, Executive Director, SLLC

Justice Kennedy is better known for his rhetorical flair than his practical guidance.church-state  But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer.

Town of Greece resolves two issues:  whether prayers must be nonsectarian and whether prayers before city council meetings are coercive.

The Court concludes that sectarian prayers that overtly refer to a specific faith are okay—to a point.  Sectarian prayers can go too far Continue reading →

 

Round-up of Greece Analysis

Posted in Commentary on By Kira Klatchko

In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, 8468059167_e8ebfeedbf_zruling 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 By Kira Klatchko

In addition to addressing local-government prayer this morning,CellTower 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 By Kira Klatchko

The Supreme Court has released its decision in Town of Greece v. Galloway, 8468059167_e8ebfeedbf_zconcluding 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 →

 

Anonymous Tip: No Corroboration? No Problem!

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

Does an anonymous, unverified tip of dangerous driving justify a traffic stop? Yes, says a divided Supreme Court.highway stop

In Prado Navarette v. California an anonymous 911 caller reported that a vehicle had run her off the road.  The Court held 5-4 that a police stop complied with the Fourth Amendment because, under the totality of the circumstances, the officers had reasonable suspicion that the driver was intoxicated.  When police stopped the Navarette brothers they smelled marijuana.  A search of the vehicle revealed 30 pounds of marijuana.

The Court’s rationale, in an opinion written by Justice Thomas, is as follows.  The tip of dangerous driving was sufficiently reliable because Continue reading →

 

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

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

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 To Decide if Mistakes of Law Invalidate Arrests

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

In Heien v. North Carolina a police officer pulled over a car because he thought that North Carolina law required that motor vehicles have two working brake lights. It turns out the officer was wrong. SupremeCourt2The North Carolina Court of Appeals concluded that state law requires motor vehicles to only have one working brake light.

When the driver and the passenger offered different stories as to where they were going, the officer asked to search the vehicle. Consent was granted and cocaine was found.

The U.S. Supreme Court will decide whether a traffic stop is permissible under the Fourth Amendment when it is based on an officer’s misunderstanding of the law. The North Carolina Supreme Court reasoned Continue reading →

 

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

Posted in IMLA Briefs on 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.Supreme Court

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 →

 

Can State and Local Police Arrest for Immigration Violations?

Posted in Case Notes on By Kira Klatchko

That is the question presented in SCOTUSblog’s Petition of the Day.Supreme Court3 The Fourth Circuit ruled in Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013), that

absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.

Frederick County’s cert petition argues that this creates a circuit split that the Court should resolve: Continue reading →

 

SCOTUS: Federal Government Retains No Interest in Abandoned Railroad Rights-of-Way

Posted in Case Notes on By Kira Klatchko

Congress grants a railroad a right-of-way across public land. RailroadROW

The federal government then grants the land to a private landowner, who takes the parcel subject to the railroad right-of-way.

The railroad later abandons the right-of-way.

Does the right-of-way interest revert to the federal government? Or does the parcel owner gain full and unburdened rights to the property?

This morning,  in Brandt Revocable Trust v. United States, No. 12-1173, the Supreme Court ruled 8-1 that the federal government does not retain an interest in the abandoned right-of-way.  As Chief Justice Roberts explained, Continue reading →

 

Supreme Court Calls for Further Analysis of Tax Case

Posted in Case Notes IMLA Briefs on By Kira Klatchko

This morning, the Supreme Court called for the views of the United States Solicitor General (“CVSG”)SupremeCourt2 on whether the Court should grant cert in Comptroller of the Treasury of Md v. Wynne, No. 13-485. The case concerns how the dormant commerce clause limits local taxation.

The Court uses the CVSG procedure with respect to only about 10 petitions a year. It indicates at least some degree of interest: the chances of a cert-grant increase significantly in such cases.

IMLA and its partners filed the only amicus brief in the case, which we discussed here.

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

 

The Supreme Court’s Best Writer—And Other Tidbits.

Posted in Roundup on By Kira Klatchko

Some fun items about the Supreme Court.

(1) The Supreme Court’s Best Writer
Legal-writing guru Ross Guberman recently guest blogged at the Volokh Conspiracy. He’s the author of Point Made, which dissects appellate briefs from leading attorneys.

He turned his attention to the Supreme Court’s best writers.

Here’s his case for Chief Justice Roberts. And here’s his case for Justice Kagan.

They’re both great picks.

Continue reading →