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Supreme Court Rejects Judge Gorsuch’s View of Special Education Law

Posted in Case Notes Commentary Monday Morning Review on March 27, 2017 By Lann McIntyre

The Supreme Court’s decision in Endrew F. v. Douglas County School District was bad timing for Supreme Court nominee Judge Neil Gorsuch.

The Supreme Court held unanimously that public school districts must offer students with disabilities an individual education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Court rejected the Tenth Circuit’s holding that an IEP must merely confer “some educational benefit” that is “more than de minimis.”

This ruling came down while Judge Gorsuch was testifying before the Senate Judiciary Committee. Judge Gorsuch was the author of a 2008 opinion Continue reading →

Supreme Court Refuses to Hear Internet Sales Tax Case

Posted in Case Notes IMLA Briefs on December 13, 2016 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 →

SLLC Files Tenth Circuit Amicus Brief Supporting Colorado’s Effort to Collect Use Tax on Remote Sales

Posted in Case Notes IMLA Briefs on May 21, 2015 By Lisa Soronen, Executive Director, SLLC

If you know anything about the State and Local Legal Center (SLLC) you know that it files amicus briefs in U.S. Supreme Court cases affecting state and local government. The SLLC made an exception and filed an amicus brief in a federal circuit court of appeals case because of the importance of the issue to SLLC members.

In Direct Marketing Association v. Brohl the Tenth Circuit will decide whether Colorado’s 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. At least three other states have similar notice and reporting requirements (Oklahoma, South Dakota, and Vermont). Continue reading →

Constructive Discharge: When You Quit or are Last Treated Badly?

Posted in Commentary on May 12, 2015 By Lisa Soronen, Executive Director, SLLC

If not all Supreme Court cases are equal, all employment law Supreme Court really cases aren’t equal. Green v. Donahoe isn’t Ledbetter v. Goodyear, holding employees have 180 days from a discriminatory pay decision to bring a claim, which Congress promptly overturned. Most employers won’t care how this case is decided. So, why did the Court take it? Likely to resolve a circuit split that has been brewing for the last 25 years.

In Green v. Donahoe the Supreme Court will decide for purposes of federal employment discrimination law when the filing period for a constructive discharge claim begins to run. The Court’s choices are: when an employee resigns or the employer’s last allegedly discriminatory act. Often these two events occur at the same time, but not in this case.

This case will apply to constructive discharge claims brought against state and local government employers under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court. Continue reading →

Who Asks Who Tells: IMLA Writes SCOTUS Amicus Brief in Religious Accommodation Case

Posted in Commentary IMLA Briefs on February 9, 2015 By Lisa Soronen, Executive Director, SLLC

HR 101: Don’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. No, no says the Equal Employment Opportunity (EEOC), if an employer thinks an employee may need a religious accommodation an employer must ask about religion. Is the EEOC’s (new) view correct?

That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores. Who must ask about the need for a religious accommodation—the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus brief, which IMLA wrote, argues the employee/applicant should ask.

Abercrombie & Fitch’s “Look Policy” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits headwear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she were Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

Fourth Circuit

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

Fifth Circuit

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

Sixth Circuit

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

Eighth Circuit

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

Ninth Circuit

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

Tenth Circuit

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

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

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

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

Catching up on recent published decisions involving local governments:

First Circuit

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

Second Circuit

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

Fourth Circuit

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

Fifth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

Second Circuit

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

Sixth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

Third Circuit

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

Fourth Circuit

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

What’s Next for Same-Sex Marriage?

Posted in Commentary on October 9, 2014 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. 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 →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

Fourth Circuit

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

Fifth Circuit

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

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

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

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

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

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

Fourth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

Third Circuit

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

Seventh Circuit

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

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

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

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

Sixth Circuit

Rorrer v. City of Stow, No. 13-3272 (Feb. 26, 2014) (reversing grant of summary judgment to City and against plaintiff, a terminated firefighter with a non-work-related injury, on ADA claim; affirming grant of summary judgment for City on First Amendment and ADA retaliation claims).

Seventh Circuit

Bryant v. City of Chicago, No. 13-1142 (Feb. 28, 2014) (in appeal of dismissal of civil-rights suit as untimely, finding that district court abused its discretion by disregarding plaintiff’s timely discovery request and that court should have equitably tolled the statute of limitations).
Hayden v. Greensburg Comm. Sch. Dist., No. 13-1757 (Feb. 24, 2014) (ruling that policy requiring boys, but not girls, playing basketball to keep their hair cut short constitutes sex discrimination Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on December 23, 2013 By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from December 16, 2013, through December 20, 2013:

Sixth Circuit

Hocker v. Pikeville City Police Dep’t, No. 13-5341 (Dec. 17, 2013) (affirming that no constitutional violation occurred in 42 U.S.C. 1983 action based on officers’ alleged use of excessive force).

Seventh Circuit

Fluker v. County of Kankakee, No. 13-2247 (Dec. 20, 2013) (affirming dismissal of suit against County and officers arising out of auto accident that occurred during transport of prisoner, under Prisoner Litigation Reform Act).

Eighth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 30, 2013 By Kira Klatchko

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

Fifth Circuit

United States v. City of New Orleans, No. 13-30161 (Sept. 27, 2013) (upholding denial of City’s motion to vacate consent decree regarding police practices).

Sixth Circuit

Bessie Jones v. City of Cincinnati, No. 11-4174 (Sept. 27, 2013) (reversing district court’s denial of qualified immunity to police officers regarding excessive-force and failure-to-provide-medical-care claims).

Tenth Circuit

Olson v. City of Golden, No. 11-1454 (Sept. 25, 2013) (dismissing as moot a challenge to City’s campaign-finance regulations after the City had amended the regulations, and affirming district court’s denial of other claims against the City).

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).