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Supreme Court Sex Offender Social Networking Case Relevant to Local Governments

Posted in Case Notes IMLA Briefs on By Lann McIntyre

In Packingham v. North Carolina the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result.

Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed.

This case may not see particularly relevant to local governments. But, if a statute (or ordinance) limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad.

The SLLC amicus brief argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles.

The Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny. So, practically speaking, the Supreme Court didn’t expand or clarify the definition of content-based in Packingham.   Continue reading →

 

Travel Ban Headed to the Supreme Court?

Posted in Case Notes Commentary on By Lann McIntyre

The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local governments supported the challengers.

 The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

 The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.  Continue reading →

 

Gorsuch Confirmation Hearings and States and Local Governments: Days 1-3 Update

Posted in Commentary on By Lann McIntyre

Confirmation hearings generally follow a predictable course; Judge Gorsuch’s hearings have been no exception. Senators from the other side of the aisle as the President ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, many issues of interest to states and local governments receive little meaningful attention.

While a friendly Senator (Flake, R-AZ) asked Judge Gorsuch whether a particular case he ruled in was consistent with the “principle of states as laboratories of democracy” and another friendly Senator (Crapo, R-ID) asked Judge Gorsuch to discuss the Tenth Amendment, federalism was rarely discussed as such and preemption wasn’t discussed at all. Likewise, many of the issues of particular importance to local governments—qualified immunity and property rights—also were not discussed.

Judge Gorsuch did say Continue reading →

 

One Step Closer to the Supreme Court Ruling on Quill

Posted in Case Notes Commentary on By Lann McIntyre

In  S. Dakota v. Wayfair, Inc., 2017 U.S. Dist. LEXIS 7669, a state trial court judge in South Dakota has ruled that a South Dakota law requiring remote sellers to collect sales tax is unconstitutional. This ruling was expected for precisely the reason the judge stated—a lower court must follow Supreme Court precedent.  

 In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. The South Dakota law directly contradicts this precedent. Continue reading →

 

Supreme Court to Define Contours of False Arrest Claims

Posted in Case Notes Commentary on By Lann McIntyre

What if a police officer arrests someone because the officer doesn’t believe the person is telling the truth and there is evidence the officer is right?

 In District of Columbia v. Wesby the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ claims of an innocent mental state.

 Facts similar to those in this case may not arise very often. But police officers must assess claims of innocence in numerous other instances (theft, assault, even homicide). 

 Police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.

 The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” The partygoers claimed they did not know they lacked permission to be in the house. 

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 →

 

What Might Justice Gorsuch Mean for States and Local Governments?

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

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

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

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

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

Continue reading →

 

Federal Agency Deference: SLLC Argues Less is More

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

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 →

 

SLLC Supreme Court Amicus Brief Urges Favorable First Amendment Ruling for Local Governments

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

In Packingham v. North Carolina the Supreme Court will hopefully refine its holding in Reed v. Town of Gilbert, Arizona (2015) in a way favorable to local governments.

The issue the Supreme Court will decide in this case is whether a North Carolina statute prohibiting registered sex offenders from accessing social networking websites where they know minors can create or maintain a profile violates the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues this law does not violate the First Amendment.

Continue reading →

 

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

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

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

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

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

 

SLLC Files Supreme Court Amicus Brief in Credit Card Swipe Fees Case

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

Is a Price Speech?

Expressions Hair Design v. Schneiderman, like most First Amendment cases, is about much more than its mere facts, here disallowing retailers to pass on credit-card swipe fees to consumers. It raises a more fundamental question over what exactly is speech.

The question the Supreme Court will decide in this case is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violate the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues these laws don’t violate the First Amendment because they regulate conduct rather than speech. Continue reading →

 

Supreme Court Refuses to Hear Internet Sales Tax Case

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

The Supreme Court refused to hear a case involving the question of whether a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional. As is always the case, the Supreme Court gave no reason for denying the petition.

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In 2010 the Colorado legislature passed the law described above to improve sales tax collection. The Direct Marketing Association sued Colorado claiming the law unconstitutionally discriminates against interstate commerce and is unconstitutional under Quill.    Continue reading →

 

False Claims Act Seal Violation Doesn’t Mean Automatic Dismissal of Case

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

State Farm Fire and Casualty Co. v. United States ex rel. Rigsby is the perfect case for an eight member Court. So simple a unanimous Court issued an opinion in about a month after oral argument.

The False Claims Act (FCA) allows third parties to sue on behalf of the United States for fraud committed against the United States. Per the Act a FCA complaint is kept secret “under seal” until the United States can review it and decide whether it wants to participate in the case. Continue reading →

 

Supreme Court Accepts “Some” versus “Meaningful” Special Education Benefits Case

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

You don’t have to be a linguist to understand that there is a wide gap between the meaning of “some” and “meaningful.” The Supreme Court must pick between these words to determine what level of educational benefits students with a disabilities must receive.

The relevance of a special education case to local governments may not be obvious. But depending on how the Supreme Court rules, this case could mean cost increase for some, if not many, school districts. To the extent local governments fund local school districts and/or compete with them for limited state dollars, this case is relevant. Continue reading →

 

Preemption Clause too Narrow? Expand it Via Regulations!

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

Every time a federal agency thinks the scope of a preemption clause in federal law is too narrow may it just write a regulation expanding it? That is the heart of the matter in Coventry Health Care of Missouri v. Nevils.

The question of most interest to state and local governments in this case, more technically, is whether Chevron deference applies to an agency’s regulation construing the scope of a statute’s express-preemption provision. Continue reading →

 

SCOTUS Dismisses Case Involving State and Local Governments Ensuring Private Entities Comply with the ADA

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

In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license. None of the schools accommodate deaf students. So a number of deaf students sued the Texas Education Agency (TEA) arguing it was required to bring the driver education schools into compliance with the Americans with Disabilities Act (ADA).   

In Ivy v. Morath the Supreme Court was supposed to decide when state and local governments are responsible for ensuring that a private actor complies with the ADA. The Court dismissed the case concluding it was moot most likely because Texas claimed that four of the students suing completed the driver education course and one moved out of state. Continue reading →

 

SCOTUS Takes Qualified Immunity Case Arising out of 9/11 Investigations

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

The Supreme Court has agreed to decide cases accusing federal government officials at the highest levels of mistreating people investigated for possible terrorist connections after 9/11.

All Supreme Court qualified immunity cases, including Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, affect state and local governments. These cases raise issues that frequently come up in run-of-the-mill qualified immunity cases, in particular, whether the court defined the “established law” at a high level of generality instead of considering the specific facts of the case when deciding whether to grant or deny qualified immunity.

Continue reading →

 

Mesa v. Hernandez: A Qualified Immunity Quandary

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

Qualified immunity cases, generally speaking, could not be more straightforward for state and local governments. No matter how bad the facts of the case, one legal analysis is better.

Mesa v. Hernandez provides a qualified immunity quandary. If Agent Mesa wins his qualified immunity claim, other government officials in the future may lose their qualified immunity claims. 

  Continue reading →

 

Remember Reed: Might Supreme Court Apply it to Commercial Speech?

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

The question the Supreme Court will decide in Expressions Hair Design v. Schneiderman is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violates the First Amendment.

Here is why this case matters to local governments: An amicus brief filed on behalf of a number of retailers asking the Court to hear this case and overturn the Second Circuit decision argues that the Court should use this case as an opportunity to rule that strict (almost always fatal) scrutiny should apply to restrictions on commercial speech per Reed v. Town of Gilbert, Arizona (2015). In Reed the Supreme Court held that strict scrutiny applies to content-based restrictions on speech. In the Reed opinion, the Court did not extend its holding to the commercial speech context where states and local governments historically have had more latitude to regulate speech. Continue reading →

 

How Broad is the Government Speech Doctrine?

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

Is Lee v. Tam a stretch, or perhaps a slant, for state and local governments to be interested in?

The issue in Lee v. Tam is whether Section 2(a) of the Lanham Act, which bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks, violates the First Amendment.

Continue reading →

 

Supreme Court to Decide Appellate Court Level to Review EEOC Subpoenas

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

McLane v. EEOC is a case only an (employment) lawyer could love.

When the Equal Employment Opportunity Commission (EEOC) investigates allegations of employment discrimination if the employer refuses to provide the information the EEOC requests it will issue a subpoena demanding the employer produce the information. If the employer refuses to comply with the subpoena the EEOC may ask a court to enforce it. Continue reading →

 

Cities v. Big Banks: Supreme Court to Pick the Winner

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

Trouble over phantom accounts isn’t the only problem Wells Fargo is currently facing. Cities have sued Wells Fargo and Bank of America for reverse redlining (lending to equally qualified minorities on less favorable terms than whites).

In its Supreme Court amicus brief in Wells Fargo v. City of Miami and Bank of America v. City of Miami the State and Local Legal Center (SLLC) argues that Miami, and other cities across the country, should have “standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to cities by discriminatory lending practices. Continue reading →

 

Opening Day at the Supreme Court

Posted in Commentary Monday Morning Review Roundup on By Lisa Soronen, Executive Director, SLLC

The first Monday in October (today) is Supreme Court opening day! Two other traditions coincide with this tradition. First is State and Local Legal Center (SLLC) Supreme Court Preview webinar. Second is the results of the Supreme Court’s “long” conference. Continue reading →

 

SCOTUS to Decide when State and Local Governments Must Police Private Actor Compliance with the ADA

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

If complying with the Americans with Disabilities Act (ADA) is difficult, it is even more difficult to ensure that another entity is complying as well. In Ivy v. Morath the Supreme Court will decide when state and local governments are responsible for ensuring that a private actor complies with the ADA. The State and Local Legal Center (SLLC) argues they should be responsible when the private actor may fairly be said to be implementing a service, program, or activity of the public entity itself. Continue reading →

 

SCOTUS to Decide “Catch-22” or “You Only Have Yourself to Blame” Redistricting Case

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

Is the North Carolina legislature in a “Catch-22” or are its problems entirely of its own making? The Supreme Court might weigh in on these questions in McCrory v. Harris.

McCrory v. Harris is a typical redistricting case in at least two respects. First, it raises so many legal issues that it is impossible to know what the Supreme Court will focus on. Second, beyond all the technical legal arguments, plaintiffs’ fundamental objection to the redistricting plan is familiar:  they claim the legislature packed minority voters into safe minority districts under the guise of complying with the Voting Right Act (VRA) to reduce minority voters’ influence in other districts. North Carolina claims it is caught in a “Catch-22.” Continue reading →

 

SCOTUS Narrows Bribery Definition Applied to Government Officials

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

Beyond what even the Supreme Court describes as “tawdy tales of Ferraris, Rolexes, and ball gowns,” McDonnell v. United States deals with a practical issue many elected officials confront at some point in their political career: when and how can you help someone who has helped you?　 Continue reading →

 

Supreme Court Drunken Driving Case Implicates Police Practices

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

As a result of the Supreme Court’s decision in Birchfield v. North Dakota in states that criminalize the refusal to take a blood alcohol concentration tests, officers should offer only a breath (not blood) test unless they have a warrant.

The Court held 5-3 that states may criminalize an arrestee’s refusal to take a warrantless breath test. If states criminalize the refusal to take a blood test police must obtain a warrant. The State and Local Legal Center (SLLC) filed an amicus brief arguing that states should be able to criminalize warrantless refusal to consent when a person is arrested upon suspicion of drunken driving.   Continue reading →

 

Narrow (and Rare) SCOTUS Win for Affirmative Action

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

Ironically, had Justice Scalia lived Fisher II might have been 4-4 or become Fisher III. But instead the more liberal Justices plus Justice Kennedy prevailed in this win for affirmative action.

In Fisher v. University of Texas at Austin the Supreme Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional, as least of 2008, when this case was first brought. Justice Kagan did not participate in this case. Continue reading →

 

Supreme Court Halts Immigration Deferred Action

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

The Supreme Court split 4-4 in United States v. Texas on whether the President’s deferred action immigration program violates federal law. As a result, the Fifth Circuit’s nationwide temporary stay of the program remains in effect. Next, a trial court may rule on whether the program should be permanently stayed.    Continue reading →

 

Is Merger Doomed: SCOTUS to Decide

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

Whoever thought up merger probably long ago gave up worrying if it was unconstitutional, if they even ever thought about it. But now that person (and numerous cities, counties, and states) have reason to worry.

In Murr v. Wisconsin the Supreme Court will decide whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property. The State and Local Legal Center (SLLC) filed an amicus brief arguing that these very common provisions are constitutional. 

Continue reading →

 

Ferguson Finds its Way to the Supreme Court

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

Not directly, but certainly unmistakably.

A police officer stopped Edward Streiff after he left a suspected drug house. The officer discovered Streiff had an outstanding warrant, searched him (legally), and discovered he was carrying illegal drugs. The Supreme Court held 5-3 that even though the initial stop was illegal, the drug evidence could be admissible against Streiff in a trial.

Continue reading →

 

This Case is Not (Only) About Paving Poor Preschool Playgrounds

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

In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died.

There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school. Continue reading →

 

SCOTUS Victory for Employees in Employment Discrimination Deadline Case

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

Per federal employment discrimination laws timelines are short and decisive. If an employee misses a deadline his or her case is over. If such timelines aren’t forgiving the Supreme Court is in Green v. Brennan. The Court chose a deadline for constructive discharge cases, where an employee feels compelled to quit due to intolerable working conditions, more favorable to employees. Continue reading →

 

SCOTUS Rules Rebuffed is Enough for Employers to Win Attorney’s Fees

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

More specifically, in CRST Van Expedited v. EEOC the Supreme Court ruled employers who prevail in Title VII employment discrimination cases may recover attorney’s fees if they are able to “rebuff” employee’s claims for any reason—including reasons not related to the merits of the claims.   Continue reading →

 

SCOTUS Sends Standing Case Back to Lower Court

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

Spokeo v. Robins is both esoteric and important. Like a lot of Supreme Court opinions these days it seems like a compromise that will just increase confusion. In short, the scope of liability for state and local governments under a number of federal statutes remains uncertain.

The Court sent the case, involving whether Thomas Robins may sue a search engine under the Fair Credit Reporting Act (FCRA) for providing inaccurate information about him, back to the lower court to determine whether Robins suffered a “concrete” harm and therefore had “standing” to sue.

While this case does not sound relevant to state and local government it is. A number of federal statutes applicable to state and local government—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA)—allow plaintiffs to sue even if they have not necessarily been harmed. Regardless, to bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. Injury-in-fact—including a concrete harm—is one of the requirements for “standing.”  Continue reading →

 

SCOTUS: Just Give Us a Reason to Approve Your Imperfect Redistricting Plan

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

In a (barely) 11 page opinion the Supreme Court did what three lower court judges could not do in three separate opinions: agree 

In Harris v. Arizona Independent Redistricting Commission the Supreme Court confirms that state and local governments don’t have to apportion legislative districts perfectly, but they do need a good reason for failing to doing so. But we knew that before. 

The Court held unanimously that Arizona’s redistricting plan, which had a total population deviation among districts of 8.8 percent, wasn’t unconstitutional. Those attacking the plan failed to show it is more probable than not that the deviation reflects illegitimate reapportionment considerations. Continue reading →

 
 

Supreme Court Hears Oral Argument in Important Immigration Case Today

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

It was a different crowd today at the Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish.

United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government.   Continue reading →

 

SCOTUS to Decide When a Claim is False per the False Claims Act

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

There is outright theft and then there is getting paid for doing the job but not following all the rules. The former may be the subject of a False Claims Act claim but what about the latter?  The Supreme Court will hear argument on that question next week.

 The False Claims Act (FCA) allows private individuals to sue on behalf of the United States to recover money that has been defrauded from the federal government. While the Supreme Court has yet to rule whether states and local governments can bring FCA claims, local governments, but not state governments, can be sued for making false claims against the federal government.   Continue reading →

 

Supreme Court Midterm for the Local Governments

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

Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states. Continue reading →

 

SCOTUS Rules Accused Criminals May Keep Untainted Asset to Pay Attorney

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

In a 6-2 decision the Supreme Court ruled that the Sixth Amendment right to counsel includes allowing a criminal defendant to use untainted substitute assets to hire an attorney, rather than freezing them for forfeiture to the government after conviction.

 The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result in Luis v. United States. State and local governments—police departments in particular—receive criminal asset forfeitures. Any many state forfeiture statutes allow freezing of substitute assets. Continue reading →

 

4-4 SCOTUS Decision: Public Sector Fair Share Laws Survive

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

Friedrichs v. California Teachers Association could have turned public sector labor law upside down. In an unsurprising move the Supreme Court issued a non-precedential 4-4 opinion affirming the lower court’s decision by an equally divided Court. This opinion continues the status quo. Had Justice Scalia not died in February this case almost certainly would have had a different outcome.  Continue reading →

 

What Might Merrick Garland Mean for State and Local Government?

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

As promised, President Obama has nominated someone to fill the vacancy on the Supreme Court.

 If this wasn’t an election year Merrick Garland would be a surprising choice. He is known as a moderate, is older (63), a white male, and has been a judge on the D.C. Circuit Court of Appeals for almost 20 years.

If it wasn’t an election year Senate Republicans would probably be racing to confirm him. Continue reading →

 
 

Supreme Court Puts Clean Power Plant Regulations on Hold

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

The Supreme Court may currently be on recess but that did not stop it from issuing a stay preventing the Clean Power Plan regulations from going into effect until the D.C. Circuit Court of Appeals, and the Supreme Court if it chooses to, rules on the regulations. Continue reading →

 

Supreme Court’s 2015-2016 Docket is Full (and Over Flowing)

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

The Friday before and the Tuesday after Martin Luther King, Jr. Day the Supreme Court accepted a total of nine cases, including a challenge to the President’s executive order allowing undocumented parents of children who are citizens to remain in the United States.

 United States v. Texas will be heard this term and decided by the end of June. Oral argument will be held next term in some of the other cases accepted mid-January.

Four of the eight cases accepted, in addition to the immigration case, affect state and local governments.  While I will write more about each of these cases later, for now, below is a brief synopsis of them. Continue reading →

 

Supreme Court Hears Oral Argument in Mandatory Union Fee Case

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

It was a typical oral argument at the Supreme Court in a “big” case. Protesters outside with opposing messages tried to out yell each other, but everyone inside was listening to Justice Kennedy.

 In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share. Continue reading →

 
 

Supreme Court Looks for a Compromise in Significant Redistricting Case

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

Today was a big day for redistricting before the Supreme Court. The Court decided one redistricting case and heard oral argument in two others.  

 Texas, like all other states, redistricts based on total population data from the census. A number of Texas voters argue that state legislative districts deviate from the ideal by as much as 45 percent when voting population is used. At oral argument today in Evenwel v. Abbott Justices Kennedy, frequently the Court’s “swing” vote in high-profile cases, asked whether both metrics can be used to comply with one-person, one-vote. Continue reading →

 

Raisin Takings Case: What’s in it for Local Governments?

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

Same-sex marriage, Affordable Care Act, raisins. What do these three have in common?  The Supreme Court has recently issued a ruling regarding each of them.

In Horne v. Department of Agriculture the Supreme Court held 8-1 that the federal government violated the Fifth Amendment Takings Clause by physically setting aside a percentage of a grower’s raisin crop each year without pay. At least six other agriculture set aside programs are in trouble as a result of this case. But what about its impact on state and local government?

Continue reading →

 

Same-Sex Couples Have A Constitutional Right to Marry

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

Obergefell v. Hodges will be celebrated and condemned internationally.

In a 5-4 decision written by Justice Kennedy the Supreme Court held that same-sex couples have a constitutional right to marry. All state laws and court decisions banning same-sex marriage are now invalid. Continue reading →

 

SCOTUS Rules Disparate-Impact Fair Housing Claims are Possible But Limited

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

If you were surprised by the Supreme Court’s ruling in the Affordable Care Act Case, you may have even been more surprised by the Court’s ruling in the Fair Housing Act case.

In Texas Department of Housing and Community Affairs v. inclusive Communities Project the Supreme Court held 5-4 that disparate-impact claims may be brought under the Fair Housing Act (FHA). All Federal Circuit Courts of Appeals had decided this issue ruling that such claims were possible, though they disagreed about the level of proof required. The Supreme Court was expected to come to the opposite conclusion (or else why would they have taken this case?). Having taken up this question twice before, only to have the cases settle, the Court has finally resolved it. Continue reading →

 

Supreme Court Rules Against Jails in Excessive Force Case

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

In Kingsley v. Hendrickson the Supreme Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for a subjective standard. As a result of this ruling it will be easier for pretrial detainees to bring successful excessive force claims against corrections officers.   Continue reading →

 

Unconstitutional: Hotel Registry Ordinances and Statutes

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

While cities are rewriting their sign codes, per the Supreme Court’s decision last week in Reed v. Town of Gilbert, Arizona they should check to see if they have a hotel registry ordinance.  If they do, it will need some rewriting too.

In City of Los Angeles v. Patel the Supreme Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available to police without at least a subpoena violates the Fourth Amendment. In his dissenting opinion, Justice Scalia cites to the State and Local Legal Center’s (SLLC) amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes:  Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia.  Continue reading →

 

Supreme Court Decides Significant Government Speech Case

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

In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.

Continue reading →

 

Prison Officials Granted Qualified Immunity in Inmate Suicide Case

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

We didn’t learn much in Taylor v. Barkes. But we could have.

Prison officials asked the Supreme Court to resolve a circuit split over whether supervisors can be liable for constitutional violations caused by their failure to supervise. Instead of requesting and holding oral argument before deciding the case, the Court summarily reversed the lower court in a per curiam (unauthored) opinion.  The Court “expess[ed] no view” on the vitality of supervisory liability instead concluding no clearly established constitutional right was implicated in this case.

The Court granted two prison officials qualified immunity related to an inmate’s suicide reasoning that no precedent at the time of the suicide established that an incarcerated person had a right to proper implementation of adequate suicide prevention protocols. So prison officials could not be liable for failing to supervise the contractor providing suicide screening. Continue reading →

 

Out of Style? Expecting Employees to Inform Employers about Religious Practices

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

The Supreme Court’s final employment case of the term is a loss for all employers—not just clothing retailers that impose their fashion sense on their employees. As Justice Thomas points out in his dissenting opinion, rather remarkably, it leaves open the possibility that an employer can be liable for intentional discrimination for failing to accommodate a practice it did not know or even suspect was religious.

In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which IMLA attorneys wrote, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation. Continue reading →

 

Supreme Court to Decide Race Discrimination Jury Selection Case

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

It has been a while since the Supreme Court has taken a case that could impact city prosecutors. But in Foster v. Humphries the Supreme Court will decide such a case.  In Foster, the Court will consider whether potential black jurors were purposely excluded in violation of Batson v. Kentucky.

In 1987 Timothy Tyrone Foster, who is black, was sentenced to death for murdering an elderly white woman. The jury was all-white; the prosecutor peremptorily struck all four prospective black jurors.  Prosecutors may strike a number of jurors for any unstated reason except because of race and sex, the Supreme Court has held. Continue reading →

 

Supreme Court to Decide Significant One-Person-One-Vote Case

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

The U.S. Constitution Equal Protection Clause’s “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The Supreme Court will decide these issues in Evenwel v. Abbott.

While this case involves a state legislature redistricting it is equally applicable to a local government drawing boundaries for a local election. While local governments may prefer to decide for themselves (rather than have the Supreme Court tell them) what population metric is appropriate, they may disagree about the better metric.

Continue reading →

 

A Retirement Case You Should Not Ignore

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

The Employee Retirement Income Security Act (ERISA) regulates private employer retirement plans and does not apply to state and local government retirement plans. Tibble v. Edison International is an ERISA case. Before you dismiss it, note that it is an ERISA fiduciary duty case.

A lower court determining the precise nature of the fiduciary duty state and local governments owe employees under a state law similar to ERISA regulating public retirement plans may look to the Supreme Court’s opinion in this case. The Court held unanimously that employers have a continuing duty to monitor retirement investments and remove imprudent ones.   Continue reading →