Legal Advocacy Program

With respect to appellate litigation, the IMLA Legal Advocacy Program serves IMLA members and their governmental clients as an evaluation center, as an information outlet and in some cases as an amicus in litigation considered to have a significant impact on a substantial number of local governments on a national basis. IMLA is the service organization of primary resort for its members in all cases in which a party to a case before the United States Supreme Court is represented by an IMLA member. The issues in these lawsuits range from the constitutional allocation of power between state and local governments and the federal government to challenges to the regulatory authority of governments based on civil and individual rights. IMLA files briefs before the Supreme Court at both the merits and petition stage and in some cases that have enough national importance, IMLA will file an amicus brief in both federal and state appellate courts. For details about cases in which IMLA has participated as an amicus, click on the tabs below.

If you want to contact IMLA about possible participation in your case, contact IMLA’s Director of Legal Advocacy, Amanda Kellar at This email address is being protected from spambots. You need JavaScript enabled to view it. or 202-466-5424 x7116.


Current Supreme Court Merits Cases

Filed March 2, 2016 (Supreme Court merits)
U.S. Army Corp of Engineers v. Hawkes
No. 15-290
Pro Bono Author: Joseph Jacquot

The issue in this case is whether the United States Army Corps of Engineers' determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court," and is therefore subject to judicial review under the Administrative Procedure Act.

In this case, the Hawkes wanted to mine peat from wetland property in Minnesota. The Army Corp of Engineers issued a “Jurisdictional Determination” (JD) that the property constitutes “waters of the United States” per the Clean Water Act meaning the Hawkes would have to obtain a permit to discharge dredged or fill materials into these “navigable waters.” Notably, the Corp concluded the property was connected by culverts and unnamed streams to a traditional navigable water way some 120 miles away. In Rapanos (2006) the Court stated that a permit application takes on average 788 days and costs about $275,000. Alternatively, if they chose to forego a permit and commenced mining the peat from their property they could be faced with extremely high penalties under the Clean Water Act.

The Hawkes commenced an action in district court challenging the JD and the Army Corp of Engineers argued that the JD was not a “final agency action” and therefore not subject to judicial review under the Administrative Procedure Act.

The lower court ruled that the Hawkes could seek judicial review of the jurisdictional determination. Per the Administrative Procedures Act judicial review may be sought from final agency actions. Per Bennett v. Spear, 520 U.S. 154 (1997), agency action is final when it marks the consummation of the agency’s final decision making process and when legal consequences flow from the action.

The court found the jurisdictional determination is the consummation of the Corps decision making process because the Corp describes an approved jurisdictional determination as a “definitive, official determination” that there are or aren’t waters of the U.S. on a site, which can be relied on for five years.

The court concluded that “rights or obligations have been determined” and “legal consequences flow” from a jurisdictional determination because, while it does not compel affirmative action, the Hawkes’ two choices following the jurisdictional determination are cost prohibitive. They can complete the permitting process which will be costly, time consuming, and ultimately futile. Or they proceed without a permit and risk an enforcement order from the Corp and stiff penalties.

IMLA’s amicus brief argued that local governments face the same challenges that the respondent’s do as landowners, however, they also have additional considerations as governmental entities that are empowered to provide long-term planning for communities including economic development and capital infrastructure projects and they therefore need the certainty provided by prompt judicial review.


Filed March 22, 2016 (Supreme Court merits)
Birchfield v. North Dakota
No. 14-1468
Pro Bono Author: Gregory Garre

The issue in this case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

In one of the three consolidated cases, Birchfield drove his car into a ditch and when an officer arrived on the scene he believed Birchfield was intoxicated. Birchfield failed a field sobriety test and a preliminary breath test showed a blood alcohol level of .254. The officer placed him under arrest and thereafter, Birchfield refused to submit to a chemical test. Such a refusal is a violation of North Dakota law and Birchfield was therefore charged with a refusal to submit to a chemical test, which is a class B misdemeanor.

Under N.D.C.C. § 39-20-01(1), an individual who drives “is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test” which may only be administered after placing the individual under arrest.

N.D.C.C. § 39-08-01 provides that a person may not drive a vehicle if that person refuses to submit to a chemical test to determine the alcohol concentration in his/her blood and any such refusal is guilty of a criminal offense.

Birchfield claimed that the statute criminalizing the refusal to submit to a chemical test violates the Fourth Amendment. Relevant to this case is the Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013), which held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Additionally, in Camara v. San Francisco (1967), which involved a city ordinance that allowed the warrantless inspection of property, the Court held there could be a violation of the Fourth Amendment even if no search was conducted. The North Dakota Supreme Court distinguished Camara noting that implied consent laws only authorize chemical testing where an officer has probable cause to believe the defendant is under the influence and has already arrested the defendant.

The North Dakota Supreme Court held that the criminal refusal statute satisfies the general reasonableness requirement of the Fourth Amendment. In so holding, the North Dakota Supreme Court discussed a number of court decisions from around the country that have similarly held that these implied consent statutes (which exist in all 50 states) do not violate the Fourth Amendment.

IMLA’s amicus brief points out that “drunk driving imposes a terrible toll on America, killing thousands and shattering the lives of tens of thousands of others each year.” The brief argues that while driving is important to many Americans, it is a voluntary privilege. Thus, agreeing to the chemical testing is voluntary as well. And criminal implied consent laws are reasonable because “they have been in effect across the Nation for decades, and that this Court has repeatedly upheld them against challenge and referred to them only in approving terms.”


Filed December 23, 2015 (Supreme Court Merits)
Heffernan v. City of Paterson
No.14-1280
Pro Bono Author: Collin Udell

Police officer Jeffery Heffernan’s former police chief and friend, Lawrence Spagnola, was running for mayor against the current mayor of Paterson. Because of the politically sensitive nature of the situation, the current police chief (who directly reports to the mayor) instituted a policy for a limited number of high ranking employees, including Heffernan, that they were prohibited from getting involved in either campaign.

While Heffernan wanted Spagnola to win he didn’t work on his campaign. Heffernan’s bedridden mother asked Heffernan to pick up a campaign sign for her and Heffernan in turn met with Spagnola’s campaign manager to pick up the sign. Another police officer saw Heffernan talking to Spagnola’s campaign manager and told one of Heffernan’s supervisors. Heffernan was demoted for his “overt involvement in a political election,” in violation of the aforementioned policy, though he intended no such thing by merely picking up the sign for his mother.

The Third Circuit ruled against Heffernan concluding that there is no “perceived-support” First Amendment retaliation theory. A traditional and crucial element of a First Amendment retaliation claim is that a plaintiff actually exercises a First Amendment right (convey a political message or associate with a political party). Heffernan exercised no such right.

It was undisputed that Heffernan did not intend to convey a political message or intend to affiliate himself with the political campaign, which would be protected by the First Amendment, when he picked up the sign for his mother. (He repeatedly disavowed doing so). His demotion was based on his employer’s perception that he intended to convey a political message / associate with the campaign. The Third Circuit noted: “it is not ‘a violation of the Constitution for a government employer to [discipline] an employee based upon substantively incorrect information,’ Waters v. Churchill, 511 U.S. 661, 679 (1994), even where the government employer erroneously believes that the employee had engaged in protected activity under the First Amendment.”

The issue in this case is whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. IMLA plans on filing an amicus brief in this case and framing the issue in a more positive fashion for local governments.

IMLA filed a brief in this case arguing that an employee in Heffernan’s position has a host of protections available to him and there is no need to constitutionalize the issue by creating a First Amendment violation.  IMLA also argued that a government employee’s ability to engage in political activity is not without limit and because Heffernan was an employee in a confidential and sensitive position he could have been demoted for actual political activities, rather than just perceived ones and that there could therefore be no First Amendment violation in this case.



Filed October 7, 2015 (Supreme Court Merits)
Luis v. United States
No. 14-419
Pro Bono Author: Mary Massaron

Held: A government may not seize “untainted assets” – i.e., those not traceable to the crime – prior to trial, as such a forfeiture would violate the defendant’s Sixth Amendment right to obtain counsel of her choice.

Luis was indicted on charges related to $45 million in Medicare fraud. Because her personal assets amounted to much less than $45 million, the federal government sought to freeze the use of her assets not traceable to the fraud pursuant to statutory authority. See 21 U.S.C. 853. The petitioner claimed that the forfeiture of such legitimately obtained assets violated her Sixth Amendment right to counsel because she claimed she was not able to afford counsel of her choosing if those assets were seized.

The Eleventh Circuit held that the seizing the assets did not violate her constitutional rights. The district court, which was upheld by the Eleventh Circuit, used this example:

                           [S]uppose . . . a bank robber [steals $100,000 and has] spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free                            to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no. The bank has the right to have those substitute, untainted assets kept available for return as well.

The question before the Supreme Court is whether preventing a criminal defendant from using assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.

IMLA’s amicus brief argued that striking down the forfeiture law in question would threaten to overturn numerous state and local forfeiture laws and would undermine law enforcement efforts directed at sophisticated criminal enterprises.



Filed September 10, 2015 (Merits-stage brief; SCOTUS)
Franchise Tax Board of California v. Hyatt
No. 14-1175
Petition-stage brief filed April 24, 2015
Petition Stage Pro Bono Author: Quin Sorenson
Merits Stage Pro Bono Author: Quin Sorenson
Status: Certiorari was granted on June 30, 2015

This case involves a former California resident who earned hundreds of millions of dollars in licensing fees during the time that he lived in California before moving to Nevada. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit.

The Nevada Supreme Court held that the discretionary-function immunity for a governmental entity and its employees was not applicable in this case because the Nevada Court recognizes an exception to that immunity for bad-faith conduct. The Nevada Supreme Court also held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada’s public policy because the state’s interest in providing relief to its citizens outweighs the comity principles.

The issues before the Court are: (1) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (2) Whether Nevada v. Hall, which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled.

IMLA submitted an amicus brief at the petition stage and joined a SLLC brief that focused on the first of these issues.


 

Past Supreme Court Merits Cases

Filed ___, 2016 (Supreme Court Merits)
Murr v. Wisconsin
No. 15-214
Pro Bono Author: Stuart Banner

This case involves two significant issues for local government. The first is by virtue of the claim of a takings and its application to “the parcel as a whole” theory and the second involves the common land use regulation that merges two non-conforming lots into one upon events such as common title or building across property lines.

In this case, the Murrs own two lots based on a conveyance in 1995 from their parents who held the title to the lots (E and F) in two distinct titles; i.e., one in their names and one in their company’s name. These contiguous lots E and F, which together include a buildable area of only 0.98 acres are each non-conforming. Lot F contained a cabin and lot E was undeveloped. A St. Croix County ordinance dating from around 1970 prohibits the individual development or sale of adjacent non-conforming lots under common ownership that are each less than one acre total. But the ordinance treats adjacent lots of less than an acre as a single, buildable lot if they are separately owned.

The Murrs sought and were denied a variance to separately use or sell lots E and F. They could use the lots only as one single buildable lot.

The Murrs brought suit, claiming that the ordinance resulted in an unconstitutional uncompensated taking because, they argue, Lot E serves no purpose or use and has no value because it cannot be sold. The lower court found their claim barred by limitations.

The Wisconsin Court of Appeals ruled there was no taking in this case and passed on the limitations issue. The court looked at the value of lots E and F in combination and determined that the Murrs’ combined property retained significant value despite being merged. A year-round residence could be located on lot E or F or could straddle both lots.

The Wisconsin Court of Appeals relied on state court precedent to conclude that the lots should be considered in combination for purposes of takings analysis. According to the Wisconsin Court of Appeals, that state court precedent relied on the “Supreme Court’s historical formulation of the takings inquiry and practical consideration.” The court noted:

[T]he United States Supreme Court has never endorsed a test that ‘segments’ a contiguous property to determine the relevant parcel …. Instead, to determine whether a particular government action has accomplished a taking, courts are to focus “‘both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole ….’”

The question before the Supreme Court is whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.


Filed ___, 2016 (Supreme Court Merits)
Manuel v. City of Joliet
No. 14-9496
Pro Bono Author: Lawrence Rosenthal

In this case, police officers found a bottle of pills in Elijah Manuel’s pocket during a traffic stop. The officers tested the pills at the scene and, according to Manuel, falsified the results and found that they were ecstasy. A lab report concluded they were not ecstasy but Manuel was detained and charges against him were not dropped for another month.

Manuel brought a claim for malicious prosecution under Section 1983. The Seventh Circuit upheld the district court’s dismissal of Manuel’s Section 1983 claim. Previously in Newsome v. McCabe, the Seventh Circuit held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment. Thus, in the Seventh Circuit there is no malicious prosecution claim under federal law if state law provides a similar cause of action and Illinois provides for a similar cause of action.

The question before the Supreme Court is whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.


Filed April 8, 2015 (Merits-stage brief; SCOTUS)
Kingsley v. Hendrickson
No. 14-6368
Pro Bono Author: Aaron Streett
Held: To prove an excessive force claim under 42 U.S.C. § 1983, a pretrial detainee must show only that the officers’ use of that force was objectively unreasonable; he does not need to show that the officers were subjectively aware that their use of force was unreasonable


This case involves a claim of excessive force under 42 U.S.C. § 1983 by a pre-trial detainee. A different constitutional standard applies in excessive force cases depending on whether a person is an arrestee, a pre-trial detainee, or convicted. Specifically, the Fourth Amendment applies to unreasonable force claims against arrestees, the Fourteenth Amendment’s Due Process Clause applies to force used against pretrial detainees, and the Eighth Amendment applies to force used against those convicted. The “objectively reasonable” test applies under the Fourth Amendment to arrestees, which is the most plaintiff friendly test. Under the Eighth Amendment, a showing of malice is required in force claims, which is the most defendant friendly test. The Supreme Court has never articulated the specifics of the standard that applies to pretrial detainees.

In this case, the issue on appeal pertained to the jury instructions and the Seventh Circuit ruled that the excessive force jury instructions in this case, which used the term “reckless” three times, were not erroneous. The question before the Court is whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable. In other words, is there a subjective component to excessive force claims under the Fourteenth Amendment or should these claims be analyzed like Fourth Amendment claims brought by arrestees?


Filed April 8, 2015 (Merits-stage brief; SCOTUS)
Horne v. Department of Agriculture
No. 14-275
Pro Bono Author: John Echeverria

Held: The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property.  Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking - it does not mean the raisins have not been appropriated for Government use.  Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.

The issues in this case are as follows: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm'n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

On the surface, this case has to do with a marketing order that regulates the sale of raisins. However the issues in this case affect local governments, particularly the petitioner’s argument that a person subject to government regulation may ignore the regulation, use the property as they see fit, and then when the government seeks to compel compliance and to impose sanctions defend on the basis that the regulation amounts to a Taking and that the property owner is justified in not complying with the unconstitutional condition. IMLA’s brief argues, among other things, that while this argument may have some allure where the regulation amounts to a Taking, where the regulation does not amount to a Taking the person’s actions can be irreversible: a historic structure or wetlets might be destroyed or changed; a national resource could be removed, damaged or destroyed, or a protected species could be destroyed or altered.


 Filed March 6, 2015 (Merits-stage brief; SCOTUS)

Obergefell v. Hodges
No. 14-556
Pro Bono Author: Blithe Smith Bock

Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

The issues in this case are as follows: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

IMLA joined an amicus brief filed by the U.S. Conference of Mayors and the cities of Los Angeles and San Francisco, arguing among other things that the freedom to marry is a fundamental right for everyone, including gay men and lesbians.


Filed January 28, 2015 (Merits-stage brief; SCOTUS)
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
No. 14-86
Pro Bono Author: Amanda Kellar (IMLA)

Held: The Supreme Court held 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

Abercrombie is a clothing store that depends on its sales associates who it calls “models” to represent its brand and promote its products. An applicant for employment applied for a job as a sales associate and she arrived at the interview wearing a head scarf. Abercrombie maintains a “Look Policy,” which in part forbids employees from wearing any headwear. Neither Abercrombie nor the applicant raised the issue of the head scarf, the applicant’s religion, or the applicant’s potential need for a religious accommodation during the interview. Ultimately, the applicant was not hired because head coverings are not permitted under the policy.

The Equal Employment Opportunity Commission filed suit on behalf of the applicant, claiming that Abercrombie failed to accommodate the applicant’s religion. The EEOC did not bring a disparate treatment claim and only brought the failure to accommodate claim. During her deposition, the assistant manager who interviewed the applicant testified that she “guessed” and “assumed” that the applicant was Muslim based on the head scarf, but she also testified that she did not “know” the applicant’s religion.

The Tenth Circuit ruled in favor of Abercrombie, finding that a plaintiff “ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice . . . ,”, which the applicant had not done. It further held that even if the employee herself need not give notice of her religious conflict, Abercrombie would still prevail because an employer must have “particularized, actual knowledge of the key facts that trigger its duty to accommodate,” and Abercrombie indisputably lacked actual knowledge—“from any source”—that the applicant wore her scarf for religious reasons or needed an accommodation for it. Indeed, the Tenth Circuit noted that even the EEOC’s own expert testified that headscarves can be worn by women for both religious and cultural reasons.

The issue before the Court was whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee. In other words, the EEOC argued that employers should be liable for failure to accommodate claims even if the employer did not have actual knowledge of the employee or applicant’s need for a religious accommodation if the employer correctly “assumed” or “guessed’ that the applicant or employee needed an accommodation. IMLA joined a brief filed by the SLLC arguing that under the EEOC’s proposed rule, employers would be forced to inquire into applicant’s religions based on stereotypes and assumptions, which is precisely what Title VII seeks to prevent. Instead, the brief advocated for adhering to long-standing EEOC guidance that provides that employers should refrain from making hiring and other employment decisions based on stereotypes and assumptions.

In an 8-1 ruling, the Supreme Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a “motivating factor” in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motiving factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.

According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion, stated that the Court should have decided this question--in the negative.


Filed January 16, 2015 (Merits brief; SCOTUS) 

City and County of San Francisco v. Sheehan
No. 11-16401
Petition-stage amicus brief – Filed on June 26, 2014
Pro Bono Author: Sarah Shalf

Held: The first issue, i.e., whether the Americans with Disabilities Act applies to police officers effectuating an arrest, was dismissed as improvidently granted. Regarding the second issue, Court held that police officers who were faced with an armed, violent, mentally ill suspect who had already made death threats to three people did not violate clearly established law when they entered the suspect’s residence instead of trying to accommodate her disability and that they were therefore entitled to qualified immunity

In this case, two police officers were called by a social worker to take Sheehan (the Respondent) into custody for an involuntary mental evaluation after Sheehan had threatened a social worker with a knife. When the officers arrived, they opened the door to Sheehan’s residence and she threatened to kill them and brandished a knife. They closed the door to her residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest, in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when that didn’t work, they shot her several times. She survived and sued under 42 U.S.C. § 1983 and the ADA.

The Ninth Circuit agreed with the district court that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers’ ultimate use of deadly force under the circumstances. However, the Ninth Circuit held that the officer’s second entry into Sheehan’s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan’s claim under the ADA, the Ninth Circuit held that the “reasonable accommodation” requirement of Title II of the ADA applies to officers’ conduct in the course of an arrest – including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan’s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her “comfort zone” until they were able to calm her down), was one for the jury.

The Supreme Court granted certiorari on two issues: (1) whether the ADA requires police officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of an arrest; and (2) whether it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence.

IMLA’s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded the broad discretion in these circumstances.

The Court dismissed the first issue regarding the ADA as improvidently granted.

Regarding the Fourth Amendment issue, the Court noted that the “real question” was “whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability.” Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question – i.e., whether the officers violated the Fourth Amendment by entering the suspect’s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that court that it has “repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established at a high level of generality…Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan’s home was justified both under the continuous search rationale and the exigent circumstances rationale.


Filed December 22, 2014 (Merits-stage brief; SCOTUS)
City of Los Angeles v. Patel 
No. 13-1175
Pro Bono Author: Thomas McCarthy

Held: Los Angeles Municipal Code § 41.49, which requires hotel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to "any officer of the Los Angeles Police Department for inspection" on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review.

Los Angeles Municipal Code § 41.49 requires hotel and motel operators to keep specific information about their guests like their name, address, room number, and information about their vehicle parked at the hotel. Section 41.49 also states that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection.” In a facial challenge to the ordinance, motel operators objected to § 41.49 authorizing warrantless inspection of guest records.

The Ninth Circuit ruled in favor of the motel operators in this case. The majority concluded that § 41.49 is facially unconstitutional because it fails to expressly provide for pre-compliance judicial review before the police can inspect the registry. The Ninth Circuit noted that the “procedural deficiency” with the ordinance affected all searches authorized by that ordinance and therefore there are “no circumstances in which the record-inspection provision may be constitutionally applied.” Both dissenting opinions agree that the ordinance in this case isn’t facially invalid because the standard for facial invalidity is so high and the motel operators failed to meet it. The challenger must establish that the ordinance would not be valid under any set of facts.

The issues before the Supreme Court are: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) Whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.


Filed November 21, 2014 (Merits-stage brief; SCOTUS)
Reed v. Town of Gilbert
No. 13-502
Pro Bono Author: William Brinton

Held: The provisions of a municipality’s sign code that impose more stringent restrictions on signs directing the public to the meeting of a non-profit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny.

After receiving an advisory notice that its signs announcing the time and location of church services were displayed for a longer time period than the Town of Gilbert’s Sign Code allowed, the Good News church sued Gilbert claiming the Sign Code violates the Free Speech Clause of the First Amendment. Gilbert’s Sign Code includes temporary directional signs related to qualifying events, political signs, and ideological signs. Good News church’s signs were temporary directional signs; such signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.

The Ninth Circuit held that Gilbert’s Sign Code does not violate the First Amendment. A majority of the court concluded the distinctions between the three sign categories are content-neutral because all signs in each category are treated the same regardless of their content even if the three categories of signs are treated differently: “[E]ach classification and its restrictions are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign. It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.”

The issue before the Court is whether the Town’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.


Filed October 16, 2014 (Merits-stage brief; SCOTUS)
Perez v. Mortgage Bankers Association
No. 13-1041
Pro Bono Author: Ashley Johnson
Held: The Paralyzed Veterans doctrine is contrary to the clear text of the Administrative Procedure Act’s rulemaking provisions. An agency is not required to use notice-and-comment procedures to amend or repeal an interpretive rule.

In 2006 the Department of Labor (DOL) issued an opinion letter concluding that mortgage loan officers do not have to be paid overtime if they work more than 40 hours a week. In 2010 the DOL issued an Administrator’s Interpretation saying the opposite and withdrawing the 2006 opinion letter. The Mortgage Bankers Association, who represents over 2,200 real estate finances companies, sued DOL claiming that if DOL wanted to make this change it had to conduct notice and comment rulemaking.

The D.C. Circuit’s rule is that if an interpretive rule is “definitive” and an agency makes a “significant change” to it, the agency must conduct notice and comment rulemaking. The D.C. Circuit ruled that reliance on a rule is not a separate element in the analysis. There is a circuit split over whether changes to interpretive rules require notice and comment. The Supreme Court will decide whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.


 Filed September 16, 2014 (Merits-stage brief; SCOTUS)

Alabama Department of Revenue v. CSX Transportation
No. 13-553
Pro Bono Author: Sarah Shalf

Held: The Court reversed the Eleventh Circuit and remanded to determine whether Alabama’s fuel-excise tax is the rough equivalent of the state’s sales tax that is applied to diesel fuel and would therefore justify the motor carrier tax exemption.

The Railroad Revitalization and Regulation Reform Act (4-R) prohibits states from taxing railroads in a discriminatory manner. In Alabama, railroads pay a 4% sales tax on diesel fuel, trucks pay a 19 cents per gallon excise tax, and water carriers pay no tax.. The Eleventh Circuit ruled Alabama violated 4-R. It compared CSX to competitors only and did not include the excise tax trucks pay when comparing their taxation to railroads. The issues before the Supreme Court are: (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state's tax scheme rather than focusing solely on the challenged tax provision

The Court held: (1) that the comparison class for purposes of determining whether a tax exemption discriminates against railroads can be either the general class of commercial and industrial taxpayers or the railroad’s direct competitors (e.g., truckers). (The Court left open whether any “other comparison classes may qualify.”); (2) a state “does not discriminate unless it treats railroads differently from other similarly situated taxpayers without sufficient justification” — and a “comparable tax levied on a competitor may justify not extending that competitor’s exemption from a general tax to a railroad.” The Court remanded to allow the Eleventh Circuit to assess whether Alabama “can justify its decision to exempt motor carriers from its sales and use tax through its decision to subject motor carriers to a fuel-excise tax”; and whether it can justify its exemption of water carriers from both taxes.


Filed August 25, 2014 (Merits-stage brief; SCOTUS)
T-Mobile South, LLC v. City of Roswell
No. 13-975
Pro Bono Author: Tillman L. Lay
Held: The Court held that when a locality denies a request, it “must provide or make available [its] reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice.” 

T-Mobile applied to construct a cell tower in the City of Roswell, Georgia in an area zoned single-family residential. The City’s ordinance only allowed “alternative tower structures” in such zones that were compatible with “the natural setting and surrounding structures.” T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree, but it would be about 25-feet taller than the pine trees surrounding it. The city council voted against the application after a hearing. City councilmembers stated various reasons for why they intended to vote to deny the application. Additionally, there was a lot of vocal opposition to the construction of the tower at the meeting from citizens of Roswell. The City sent T-Mobile a brief letter saying that it denied T-Mobile’s application and that T-Mobile could obtain the hearing transcript and meeting minutes, which set forth its reasons for the denial.

The Telecommunications Act of 1996 (TCA) requires that permit denials for cell towers be “in writing.” The district court and other Circuit Courts have held that the TCA requires a written decision and a written record that explain why the city council’s majority rejected the application. The Eleventh Circuit disagreed relying on a plain reading of the statute. The statute does not say that “the decision [must] be ‘in a separate writing’ or in a ‘writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held’ or ‘in a single writing that itself contains all of the grounds and explanations for the decision.’”

The issue before the Supreme Court is whether a document from a local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the TCA’s “in writing” requirement.

Applying its holding to the facts of the case, the Supreme Court held that the City satisfied its obligation to provide its reasons by providing detailed minutes of the City Council meeting at which the tower siting application was denied; but the City breached its statutory obligation by providing those minutes 26 days after the written denial (and just 4 days before petitioner’s time to seek judicial review would have expired).


Filed August 5, 2014 (Merits-stage brief; SCOTUS)
Comptroller v. Wynne
No. 13-485
Merits author: Paul Clement & Zack Tripp
Petition-stage brief filed on November 18, 2013
Petition stage author: Erich Eiselt (IMLA)
Held: Maryland’s tax scheme is unconstitutional and violates the dormant Commerce Clause.

Maryland taxes the entire income of its residents by imposing a state income tax with two components: a State tax and a County tax. The County tax is based on where the individual is domiciled and maintains a principal residence. State law provides for a tax credit for taxes paid to other states, but this credit does not apply to offset a resident’s County tax obligation.

The Respondents are a married couple with five children residing in Howard County, Maryland. In 2006, the tax year at issue, Mr. Wynne held a 2.4% ownership interest in a Maryland Subchapter-S corporation based in Howard County. The Wynne’s object to Maryland’s taxing scheme, claiming that the County tax creates a situation of unconstitutional double taxation in violation of the dormant commerce clause. The Maryland Court of Appeals agreed and held in favor of the resident tax payers.

The Supreme Court accepted certiorari to resolve the conflict created by the Maryland Court of Appeals’ decision between a most basic principle of state sovereignty – the right of a state to tax a resident within its boundaries, which has been recognized throughout the history of the Court–and the unwritten, amorphous and arbitrary concept of “dormant” Commerce Clause jurisprudence.

In a 5-4 opinion, writing for a sharply divided Court, Justice Alito concluded that Maryland’s personal income tax scheme violates the dormant Commerce Clause. The majority concluded that Maryland’s tax scheme creates a risk of double taxation, is inherently discriminatory and that it fails the “internal consistency” test. The majority noted that the state’s tax scheme operates as a “tariff,” which the Court concluded is “fatal because tariffs are the paradigmatic example of law discriminating against interstate commerce.” (internal quotations omitted)


Filed June 4, 2014 (Merits-stage brief; SCOTUS)
Integrity Staffing Solutions, Inc. v. Busk
No. 13-433
Pro Bono Author: James Ho
Petition-stage amicus brief – Filed on November 7, 2013 
Held: The Court unanimously held that the time the employees spent waiting to undergo security screenings was not compensable under the FLSA.

Integrity Staffing Solutions provides temporary warehouse staffing to clients such as Amazon.com. In 2010, two plaintiffs filed a putative collective and class action alleging that pursuant to the FLSA, they, and hundreds of other former and current employees of Integrity, were entitled to compensation for time spent undergoing security screenings at warehouses in which they filled orders for the online retailer.

Integrity filed a motion to dismiss arguing that the time spent clearing security checks at the end of the work day is not compensable under the FLSA, as the security screenings were not “necessary and integral” to the employees’ jobs as warehouse workers. Integrity’s argument in favor of dismissal was consistent with decisions of the Second Circuit and the Eleventh Circuit.

The district court agreed with the holdings of those courts and held that even if the security checks were necessary to the employer’s goal of minimizing employee theft, plaintiffs still did not state a claim upon which relief could be granted because the security screenings were not “necessary and integral” to the employees’ jobs of order fulfillment. Plaintiffs appealed, and with respect to their claim regarding the compensability of time spent proceeding through security screenings, the Ninth Circuit reversed. The issue in this case was whether time spent in the security screenings is compensable under the FLSA. The Supreme Court held that it was not.

Filed April 9, 2014 (Merits-stage brief; SCOTUS)
Lane v. Franks
No. 13-483
Author: Matthew Delude
Held: The Court unanimously held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.”

Petitioner Edward Lane accepted a job working for the Central Alabama Community College (CACC). He discovered that then-state representative Suzanne Schmitz was listed on his program’s payroll but never came to work. After numerous failed attempts to get her to come to work Lane fired her. Lane was subpoenaed to testify about his interactions with Schmitz before a grand jury and later a criminal trial. More than two years after his initial grand jury testimony and due to budget cuts CACC laid off 29 probationary employees, including Lane. All but three were called back because CACC realized many of those employees were not in fact probationary. Lane claims he was terminated for testifying against Schmitz in violation of the First Amendment.

The Eleventh Circuit disagreed and found that Lane was acting pursuant to his official job duties when he testified and therefore was not protected by the First Amendment. Other Circuits have held otherwise when it comes to speech pursuant to a subpoena.
This was the first public employment First Amendment case the Supreme Court accepted since Garcetti v. Ceballos. The issue before the Court was whether a public employee may bring a First Amendment constitutional claim for alleged retaliation for truthful sworn testimony that was compelled pursuant to subpoena.

IMLA’s brief argued that an employee who is acting as an employee and in the scope and context of employment is protected by all of the rights and benefits afforded to any employee under state and federal law, but the Constitution should not convert an employment action or dispute into a federal claim simply because the employer is a government entity. IMLA’s brief sought to convince the Court that the First Amendment is a poor vehicle to protect employees from retaliation for their testimony as it only applies public employers and leaves employees of private employers without the added protections sought by the Petitioner. Rather, IMLA argued, the host of laws that already exist should be sufficient to protect employees under these circumstances, and if not, additional laws could be passed to protect all employees from retaliation for testifying.

IMLA’s brief also pointed out that governmental employees are likely to be the most frequent witnesses and that many do so as a regular part of their job and that they should not be given a free pass to misbehave by covering their misbehavior under a blanket of First Amendment immunity. Similarly, IMLA argued that employees may admit in testimony that they abused their positions of public trust and should not be protected if they do so.

While the Court reversed the Eleventh Circuit decision which held that the speech was not protected because the employee “learned of the subject matter of his testimony in the course of his [public] employment”, the Court did affirm the Eleventh Circuit’s conclusion that the employer was entitled to qualified immunity. Although the Court did not rule in favor of the employer, IMLA believes that its amicus efforts paid off, as the Court specifically limited its ruling so as not to cover those employees who testify regularly as part of their jobs and also noted that the ruling would not protect employees who admitted to their own misconduct during testimony. As Justice Thomas pointed out in his concurring opinion, for some public employees like police, crime scene technicians, and laboratory analysts, “testifying is a routine and crucial part of their employment duties.”


Filed January 28, 2014 (Merits-stage brief; SCOTUS)
Sebelius v. Hobby Lobby / Conestoga Wood Specialties Corp. v. Sebelius
No. 13-354; 13-356
Pro Bono Author: Christine Van Aken
Oral Argument: March 25, 2014
Held: The Supreme Court concluded that RFRA’s definition of “person” includes for-profit closely held corporations, thereby invalidating the contraceptive mandate of the Affordable Care Act.

Three for-profit corporations and their owners objected on religious grounds to the Affordable Care Act’s requirement that a minimum level of health insurance includes coverage for all FDA-approved contraceptive methods. The corporations object to the requirement that they provide health insurance covering these contraceptive methods as they claim that this requirement violates their sincerely held religious beliefs under the Religious Freedom Restoration Act of 1993 (RFRA). The Third Circuit and Sixth Circuit both held that a for-profit secular corporation was not a “person” under RFRA and could therefore not engage in religious exercise under the First Amendment and RFRA while the 10th Circuit held otherwise, stating that a for-profit corporation was a “person” under RFRA, thus triggering the circuit split.

RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. The corporations claim that RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

IMLA’s amicus brief solely focused on the argument that if the Supreme Court were to hold that a “person” under RFRA included for-profit corporations, then, given the statutory history of RFRA, RLUIPA’s definition of “person” could potentially have to include for-profit corporations. If that were the case, for-profit corporations would then be able to use RLUIPA to resist land use regulations on religious grounds, which could be onerous for local governments. Although the Supreme Court ultimately held that RFRA’s definition of “person” does include closely held for-profit corporations, Justice Ginsburg cited to IMLA’s brief in her dissent.


 

Filed January 17, 2014 (Merits-stage brief; SCOTUS)
Wood v. Moss
No. 13-155
Pro Bono Author: Bennett Cohen
Held: The Court unanimously granted qualified immunity to two Secret Service agents who moved anti-Bush protesters a block further from the President than pro-Bush supporters.

Pro- and anti-President Bush demonstrators had equal access to the President as his motorcade arrived in Jacksonville, Oregon. But when the President made an unexpected stop for dinner at the Jacksonville Inn’s outdoor patio, Secret Service agents, assisted by state and local police officers, moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the President than the pro-Bush demonstrators. The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated. The Ninth Circuit denied the agents qualified immunity.

The issue before the Supreme Court was whether the lower court evaluated the qualified immunity question in this case too generally. The Ninth Circuit focused its conclusion on whether the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the President than the pro-Bush demonstrators. The Court concluded that the agents were entitled to qualified immunity: “No decision of this Court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the President.”


 

Filed January 6, 2014 (Merits-stage brief; SCOTUS)
Plumhoff v. Rickard
No. 12-1117
Pro Bono Author: Peter Keith
Held: The Court held that police officers did not violate the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase. The Court also held the officers were entitled to qualified immunity.

Police officers shot and killed Donald Rickard and his passenger after Rickard led police on a dangerous high-speed chase. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer. The families of Rickard and his passenger sought money damages claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law.

The issue before the Supreme Court was whether the Sixth Circuit properly denied qualified immunity by distinguishing this case, which arose in 2004, with a later Supreme Court decision from 2007. IMLA’s brief argued that the Supreme Court should rule as follows: Officers retain qualified immunity from Fourth Amendment force claims so long as it is arguable, on the historical facts most favorable to the plaintiff, that the force was reasonable. In evaluating immunity, a court must adopt the inferences that a reasonable officer could arguably draw from the facts, regardless of whether those inferences are factual or legal. It is a legal question whether—based on the historical facts, the inferences an officer could arguably draw from them, and clearly established law—only a plainly incompetent officer could conclude that force was reasonable.

The Supreme Court concluded that the use of deadly force was reasonable because “[u]nder the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.” The number of shots wasn’t unreasonable because “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” The Court also held that even if the officers had violated the Fourth Amendment, they would have been entitled to qualified immunity because they did not violate clearly established law.


Filed December 23, 2013 (Merits-stage brief; SCOTUS)
Marvin M. Brandt Revocable Trust v. United States
No. 12-1173
Pro Bono Author: Charles Montange
Held: Reversed and remanded on March 10, 2014. The Court rejected the United States’ contention that Congress granted railroads more than an easement and that the government retained an implied reversionary interest in the property.

In 1875 the Federal government granted significant easements to railroad companies to build tracks across the country. For a number of reasons, many of those railroad tracks have recently become abandoned. In 1983, Congress amended the National Trails System Act (16 USC 1247 (d)) (the “Trails Act”) to allow the federal government to take back abandoned railroad easements and turn them into land for public recreation. The process is commonly referred to as “railbanking.”

The Trails Act triggered a slew of litigation against the government, with independent landowners claiming that the original grants from the 19th century did not contain a residual right of possession for the government after tracks had been abandoned. The Seventh and Federal Circuits have previously held that the United States did not retain an implied reversionary interest in the abandoned tracks. In this case, the Tenth Circuit held otherwise, triggering a circuit split.

The issue before the Court was who owns an abandoned federally granted railroad right-of-way: the United States or the land owner whose property the right-of-way runs through. Local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.” If the Supreme Court had agreed with the Tenth Circuit, state and local governments would have benefited. A federal statute, if applicable, grants the United States title to abandoned railroad rights-of-way unless a “public highway” is established on the right-of-way within one year of abandonment. Public highways include recreational trails. The IMLA amicus brief argues that state and local governments have long relied on the federal statutes relevant to this case to build public highways in abandoned railroad rights-of-way.


Filed November 7, 2013 (Merits-stage brief; SCOTUS)

McCullen v. Coakley
No. 12-1168
Pro Bono Author: Mary Jean Dolan
Held: The Massachusetts Act providing for a 35-foot buffer-zone violated the First Amendment

This was a Massachusetts case based on the permissibility of buffer zones around abortion clinics. Specifically, Massachusetts has a law making it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of a “reproductive health care facility.” The law exempts any employees or agents of such a clinic so long as they are acting within the scope of their employment.

Petitioners challenged the constitutionality of the law under the First and Fourteenth Amendments, arguing that it restricts the speech of “only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view.” Petitioners also argued that to the extent that the Court’s Hill v. Colorado (2000) decision controls the outcome of this case, that decision should be overruled. In, Hill, the Court ruled that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature, or counseling within eight feet of a person entering a health-care facility.

The issues before the Court were, (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and (2), whether, if Hill v. Colorado, permits enforcement of this law, Hill should be limited or overruled. While the Supreme Court held that the Massachusetts law was unconstitutional, it did not explicitly overrule Hill.


 

Filed September 23, 2013 (Merits-stage brief; SCOTUS)
Sprint Communications Company v. Jacobs
No. 12-815
Pro Bono Author: Kira Klatchko
Held: That abstention did not apply

This case arose out of a telecom dispute in Iowa. Sprint refused to pay another company’s intrastate access charge for a service and asked the Iowa Utility Board (IUB) for confirmation that it was under no obligation to do so. The IUB ordered Sprint to pay, and Sprint challenged the IUB’s decision in federal and state courts simultaneously. Under the Younger abstention doctrine, the Eighth Circuit ruled that the district court should not hear the case, if at all, until the state court’s review of the IUB decision was complete.

The Supreme Court took the case to decide whether it mattered for the purposes of abstention that Sprint initially asked the IUB for approval—a remedial proceeding— or if Younger abstention only applies where the state brings a party before the court or administrative board in a coercive proceeding.

Most remedial proceedings happen on the local level and involve zoning variances: for example, the denial of gun permits, and the like. The question was whether a federal court should be able to review this type of decision immediately or whether it should abstain until the state proceedings have ended.


Filed September 3, 2013 (Merits-stage brief; SCOTUS) 

Township of Mount Holly v. Mt. Holly Garden Citizens in Action
No. 11-1507
Pro Bono Author: Kevin Decker
Status: Settled on November 13, 2013

The issue in this case was whether disparate impact claims are cognizable under the Fair Housing Act (FHA). If the Court were to reach such a conclusion, local municipalities would be subject to plaintiff suits for the unintended adverse impacts of their housing and redevelopment policies on minority populations.

Mount Holly Gardens is a section of the Township of Mount Holly in Central New Jersey. The neighborhood consists of about 300 brick units, originally constructed in the 1950s for military housing. In recent years the neighborhood had fallen into a period of decline, experiencing problems with absentee landlordism, and abandoned units. Many of the existing houses had been boarded up to prevent stripping of their valuables and piping. The area also became plagued with drug dealing and criminal activity. In 2002 the township declared the neighborhood blighted and in need of redevelopment.

From the start, the city’s plans for redevelopment were surrounded by a cloud of suspicion and distrust. Residents feared that they would be forced out of their neighborhoods because the proposed plans failed to provide for a sufficient number of rehabbed units and new affordable housing units. In 2003, residents who were predominately African American or Hispanic filed suit under the FHA, alleging that the redevelopment had a disparate impact on minority citizens who would be forced to vacate their neighborhood.

The town’s redevelopment plan called for the neighborhood to raze 329 roughhouses to make way for 228 apartments, 292 townhouses, and 54,000 square feet of commercial space. The plan included provisions to allocate about 10 percent of the neighborhood for affordable housing, which is consistent with the state Council on Affordable Housing Standards. In September 2011, the Third Circuit ruled that the redevelopment plan may have been discriminatory, and in violation of the FHA, even if that was not the township’s intent.


Filed March 25, 2013 (Brief on the Merits; SCOTUS)
American Trucking Associations, Inc. v. City of Los Angeles
No. 12-52
Pro Bono Author: Michael Burger
Status: Reversed and Remanded on June 13, 2013.

The American Trucking Association filed suit against the City and Port of Los Angeles over a policy that restricted certain drayage trucks from using the Port. Drayage vehicles are not hired by the Port; instead, shipping companies and transportation companies hire the drayage vehicles to ply their trade at the port. The policy at issue includes an order that effectively banned drayage vehicles from the port by prohibiting terminal operators from allowing drayage vehicles to use port facilities if the operators did not have a concession agreement. The Concession plans created a direct contractual agreement between the Port and the motor carriers providing drayage services.

The issue before the Court was whether a number of the Port’s concession agreements are preempted by the FAA Authorization Act, specifically, 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…with respect to the transportation of property.” The Port argued that this section of the law contains an unexpressed “market participant” exception, which permits a municipal governmental entity to take action that occurs in a market in which the municipality does not participate, and is unconnected with any interest in the efficient procurement of services. The Court held that the FAAAA expressly preempts provisions in the concession agreements.


Filed February 27, 2013 (Brief on the Merits; SCOTUS)
Dan’s City Used Cars, Inc. v. Pelkey
No. 12-52
Pro Bono Author: Sarah M. Shalf
Status: Affirmed against federal preemption on May 13, 2013

Robert Pelkey’s landlord towed Pelkey’s car when he failed to move it during a snowstorm in violation of his landlord’s parking policy. Pelkey was seriously ill at the time and did not learn about his car being towed until he returned from the hospital. When Pelkey’s attorney contacted Dan’s City Used Cars the towing company lied and said his car had been sold at public auction and never remunerated Pelkey for his loss. Pelkey brought a number of state claims against his landlord and Dan’s City Used Cars related to the incident.

The lower court concluded that the Federal Aviation Administration Authorization Act (“FAAAA”) preempted the state’s consumer protection laws, state towing liens and the common law of bailment insofar as each protected Pelkey’s interests. The Court accepted certiorari to decide whether such causes of actions against a tow-motor carrier based on state law regulating the sale and disposal of a towed vehicle were related to a transportation service provided by the carrier and were thus preempted by the FAAAA.


 

Filed February 19, 2013 (Brief on the Merits; SCOTUS)
Horne v. USDA
No. 12-123
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded on June 10, 2013

Since the 1930’s the United States Department of Agriculture (USDA) has attempted to stabilize raisin prices through a marketing program which requires that a percentage of every year’s annual crop be kept off the market. This rule applies to “handlers” of the raisins, but not to the grape growers themselves. The grower typically grows and dries the grapes, and then delivers the raisins to a handler for packaging and shipping. A group of operators in California were accused of trying to circumvent the marketing limitation and the reserve pool requirement. Instead of selling the raisins to “handlers,” they set up their own processing operations where they processed their own raisins, as well as other raisins sold to them by other growers, for market distribution.

This case is relevant to municipal attorneys because the operators claim that they have a right to raise the takings issue as a defense to the enforcement of the marketing program. The Court held that a farmer who is deemed to have violated an agricultural marketing order, is fined, and seeks to argue that the fine is an unconstitutional “taking” can bring his “takings” claim in a regular federal district court without first paying the fine, nor is he required to bring that claim in the Court of Federal Claims.


Filed February 15, 2013 (Merits-stage brief; SCOTUS) 

Madigan v. Levin
No. 12-872
Pro Bono Author: Thomas J. Davis
Status: The writ of certiorari was dismissed as improvidently granted in a per curiam opinion on October 15, 2013.

Harvey Levin worked as an Illinois Assistant Attorney General. When he was terminated from this position he had been employed for six years and was over sixty years old. Levin sued the State of Illinois, the Office of the Illinois Attorney General, and the Attorney General in her individual capacity under the Age Discrimination in Employment Act (ADEA), and Section 1983. When the state sought to dismiss the 1983 claim as being displaced by the ADEA claim, the Seventh Circuit refused the request and held that they were not mutually exclusive causes of action.

The practical effect for local governments and governmental employers is that the ADEA provides some requirements for suit that the Section 1983 claims lacks. By allowing Section 1983 age discrimination claims and ADEA claims to co-exist, plaintiffs are given an alternative means for bringing ADEA-type claims without ADEA procedures. The issue before the Court was whether the Seventh Circuit erred in holding that state and local government employees may avoid the ADEA’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and Section 1983.


Filed January 30, 2013 (Brief on the Merits; SCOTUS)
McBurney v. Young
No. 12-17
Pro Bono Author: Stuart A. Raphael
Status: Affirmed in favor of Virginia FOIA-style law on April 29, 2013

Two non-Virginians, McBurney and Hurlbert, were denied access to records held by Virginia state agencies, because of a “residents-only” limitation which regulates access to most agencies in Virginia. McBurney, a citizen of Rhode Island, wanted to know why there was a nine-month delay in his collecting child support after his former wife defaulted on her obligation, and requested all information related to him, his son, his ex-wife, and his case and the handling of child support cases when one spouse lives abroad. Hurlbert, a citizen of California, operates a business which requests real estate tax assessment records for clients from state agencies. He sought assessment records for certain real estate parcels in Henrico County, Virginia. Both were denied access to records because they aren’t citizens of Virginia.

McBurney and Hurlbert filed suit seeking to have the Virginia FOIA-style law invalidated because the law limited the right of access to public records to “citizens” of the state. The issue before the Court was whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state may preclude residents of other states from enjoying the same right of access to public records that the state affords its own residents.


Filed December 28, 2012 (Brief on the Merits; SCOTUS)
Koontz v. St. Johns River Water Management District
No. 11-1447
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded June 25, 2013

Koontz sought a permit to develop part of his property that was contained within the Riparian Habitat Protection Zone, which is subject to the jurisdiction of the St. Johns River Water Management District. St. Johns asked Koontz to deed the rest of his land to St. Johns and perform off-site mitigation by either replacing culverts about five miles from his property or plugging drainage canals on other property seven miles away. Koontz agreed to deed the rest of his land to St. Johns but wouldn’t agree to the off-site mitigation. So, St. Johns never issued him a permit. Koontz sued St. Johns for a temporary taking and was awarded almost $400,000.

The Court will decide (1) whether a land-use agency can be held liable for a taking when it refused to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), and (2) whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.


Filed November 19, 2012 (Brief on the Merits; SCOTUS)
City of Arlington v. FCC
Nos. 11-1545 & 11-1547
Pro Bono Author: Paul D. Clement
Status: Affirmed in favor of City of Arlington on May 20, 2013

The issue before the Court was whether an appellate court properly granted the Federal Communications Commission (FCC) Chevron deference in affirming the agency's authority to set “shot clocks” for state and local governments to approve or deny cell tower-siting applications. The FCC and the wireless industry argue the order in question is entitled to the highest degree of deference (defer to agency interpretations of statutes unless they are unreasonable), known as Chevron deference after the 1984 Supreme Court decision, Chevron v. Natural Resources Defense Council. The petitioners, including the cities of Arlington and San Antonio, Texas, assert Chevron deference should not be allowed.

Note: IMLA was accorded Intervenor status in the Fifth Circuit and therefore has party status in this case at the Supreme Court.


Filed September 13, 2012 (Brief on the Merits; SCOTUS)
L.A. Cnty. Flood Control Dist. v. NRDC
No. 11-460
Pro Bono Author: Sarah Shalf
Status: Reversed and Remanded January 8, 2013

To control flooding and prevent potential property damage, The City of Los Angeles, like many cities across the country, created a network Municipal Separate Storm Sewer System (MS4s). These channelized improvements to surface water flow are necessary to prevent catastrophic losses in the event of a natural disaster. The Ninth Circuit recently held that these man-made improvements constitute a “point source” under the Clean Water Act, even when they do not divert or alter the water source in any way, but merely channelize it for flood prevention. This redefinition of what constitutes a “point source” conflicted with prior Supreme Court case law, and it opened municipal governments operating MS4 waterways to strict liability for any discharge that passes through their gates, regardless of whether the discharge occurred upstream and outside of their control. The ruling placed cities in the untenable position of having to assume liability for all pollutants flowing through the MS4s they maintain, or forego developing flood control systems that protect the lives and property of their citizens.

The Supreme Court held that the Clean Water Act does not regulate movement of water from one part of a river, through a concrete channel, into a lower portion of the same river.


Filed September 4, 2012 (Brief on the Merits; SCOTUS)
Arkansas Game and Fish Commission v. U.S.
No. 11-597
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded December 4, 2012

The issue in the case involved the question of whether a taking occurs when the federal government repeatedly releases water from a dam that floods property downstream. In this case, the Commission argued that the flooding was not temporary as it occurred over a period of six years and resulted in the loss of timber valued at nearly six million dollars. The federal government took the position that being a downstream riparian owner requires the property owner to accept certain burdens with the benefits of riverside ownership, including getting flooded from time to time. The Fifth Circuit, which ruled for the United States, did not go quite so far, but concluded that a property owner could not recover under the Takings Clause for a temporary invasion of property.

On December 4, 2012, the Supreme Court decided that when the government makes a decision to release water from a retaining dam, it can be sued even if the downstream flooding is temporary in duration, provided it causes sufficient damage that is traced to the decision to release.


Filed February 06, 2012 (merits-stage brief)
Armour v. City of Indianapolis READ BRIEF HERE
Pro Bono Authors: Lowell Schiller, Quin Sorenson & John Meiser
Held: Because the city had a rational basis for its distinction between homeowners who had paid their taxes in a lumpsum and those who paid over time by installments, the city’s refusal to provide a refund to those who paid in a lump sum did not violate the Equal Protection Clause.

A group of property owners brought an equal protection claim against the City of Indianapolis due to the City's decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.
IMLA submitted a brief in this case to emphasize that the City's actions meet the rational basis standard. Cities have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief.


Filed January 2012 (merits-stage brief)

Reichle v. Howards READ BRIEF HERE
No. 11-262

IMLA signed on with the State and Local Legal Center on a case with the following question: Is a person who is arrested upon probable cause barred from bringing a First Amendment retaliatory arrest claim against the arresting officer? In this case, Steven Howards was visiting an outdoor shopping mall when he found out that Vice President Dick Cheney would be making an appearance. Undercover Secret Service was on the scene, and one member of the team overheard Howards speaking into his cell phone, "I'm going to ask him how many kids he's killed today." Mr. Howards did approach the Vice President, touched him on the shoulder, and told him his policies in Iraq were disgusting.

Howards walked away, but he was stopped by Agent Reichle. Agent Reichle asked Howards if he had touched the Vice President. Howards responded untruthfully that he hadn't and tried to walk away. Howards was arrested for harassment, held for a few hours, and released.

Howards brought an action against the Secret Service agents alleging that he was arrested without probable cause in violation of the Fourth Amendment and in retaliation for the exercise of his First Amendment rights. The Court of Appeals for the Tenth Circuit ruled that the agents were entitled to qualified immunity on the Fourth Amendment claim, as Howards had lied (which in this case, triggered a federal statute). However, the Tenth Circuit held that Howards could pursue a First Amendment retaliatory arrest claim despite the fact that agents had probable cause to arrest Howard.

The Court held that the two Secret Service agents were entitled to qualified immunity from suit because, at the time of the arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.


Filed December 28, 2011 (merits-stage brief)
Magner v. Gallagher READ BRIEF HERE
Pro Bono Authors: Kevin Decker & Amie Penny
Status: This case was dismissed by both sides by agreement

Like many cities, St. Paul has a property maintenance code which establishes minimum standards for all structures, including provision on light, ventilation, heating, sanitation, fire safety, etc. In 2002, St. Paul's Department of Neighborhood Housing and Property Improvement (DNHPI) increased the level of code enforcement and targeted rental properties. DNHPI employed a number of strategies, including issuing orders to abate conditions, condemnations, vacant-building registrations, fees for excessive consumption of municipal services, and if necessary, court action.

Plaintiffs in this case were landlords, with portfolios ranging from one to over forty properties. These landlords received the code enforcement citations. Plaintiffs claimed that they suffered increased maintenance costs and fees because of code enforcement. The 8th Circuit Court of Appeals held that these landlords could bring a disparate impact claim under the FHA, because the increased cost of repaid tended to increase rents, thereby disproportionately reducing the housing options for people of color. Plaintiffs were not required to show that the policy or practice was formulated with discriminatory intent; they simply had to show that "a facially neutral policy had a significant adverse impact on members of a protected minority group."


 

Filed November 21, 2011 (merits-stage brief)
Filarsky v. Delia READ BRIEF HERE
Pro Bono Author: Geoffrey Eaton
Held: A private individual temporarily retained by the government to carryout its work is entitled to seek qualified immunity from suit under Section 1983

Delia brought a Section 1983 action against, the City of Rialto, a number of its employees, and importantly in this case, a private attorney hired to conduct an interview with Delia. Delia alleged a violation of his Fourth Amendment rights, and the 9th Circuit granted qualified immunity to all the defendants, EXCEPT for the private attorney, Filarsky. Because Filarsky is not a government employee, the 9th Circuit ruled that there was no special reason to extend governmental immunity to private parties similarly situated. IMLA participated in this case because local government entities rely on outside counsel regularly in performing day-to-day activities and for roles that are very specific in nature. Private lawyers who are acting on the government's behalf should not be denied the protections while they are working side-by-side with government lawyer, simply because they are not employed by the local entity. A ruling against Filarsky would certainly have the consequence of affecting a government entity's ability to retain high-quality counsel and would also likely increase municipal costs in a time when localities can least afford additional financial burdens. IMLA signed onto an amicus brief submitted by the National School Boards Association.


 

Filed September 16, 2011 (merits-stage brief)
Rehberg v. Paulk READ BRIEF HERE
Pro Bono Author: Lawrence Rosenthal
Held: A witness in a grand jury proceeding is entitled to the same absolute immunity from suit under Section 1983 as a witness who testifies at trial.

Rehberg sent a number of anonymous faxes to a local hospital, criticizing the management of the hospital. Paulk was a public investigator in the District Attorneys office who started investigating Rehberg as a "favor" to the hospital. Eventually, Rehberg was indicted three times by a grand jury, where Paulk was the only or one of two witnesses in front of the grand jury. Each time, Rehberg successfully challenged the grand jury indictment and the indictments were dismissed. Rehberg brought a Section 1983 action against, among others, Paulk for malicious investigation/prosecution and claiming that his Fourth Amendment rights were violated because he had been arrested under the "malicious" indictments. The Question Presented in front of the Supreme Court is an interesting one: "Whether a law enforcement official sued for an allegedly unreasonable search and seizure resulting from testimony in front of a grand jury that allegedly failed to provide probable cause should be denied testimonial immunity on the theory that the official is properly analogized to a complaining witness who could be sued at common law for the tort of malicious prosecution."


Filed August 25, 2011 (merits-stage brief)
Florence v. Brd. of Chosen Freeholders of County of Burlington READ BRIEF HERE
Held: Jail strip searches do not require reasonable suspicion, at least so long as the arrestee is being admitted into the general jail population

IMLA signed on to an amicus effort headed by the City and County of San Francisco. In short, the issue is whether or not a visual strip search for an arrestee before being placed with the general jail population (regardless of pretrial, conviction, offense type) is constitutional under the Fourth Amendment. In 1979, the Supreme Court decided Bell v. Wolfish, 441 U.S. 520 (1979), which upheld a jail policy requiring a visual strip search of every inmate (pretrial and convicted) after every contact visit from a person outside the jail. Since Bell, some circuits now hold that arrestees charged with minor offenses may not be strip searched unless the prison has a reasonable suspicion that the arrestee is concealing a weapon or other contraband. IMLA believes that to ensure the safety of jail personnel, visitors, other inmates, local jail official need to be able to visually strip search arrestees before they enter the general jail population.


Filed March 31, 2011 (merits-stage brief)
Nevada Ethics Commission v. Carrigan READ BRIEF HERE
Pro Bono Authors: David Barber, Ashley Martinez, Elisabeth Kaylor, Molly Shortall (Arlington City Attorney's Office)
Holding: The Nevada Ethics in Government Law, which prohibits a legislator who has a conflict of interest from both voting on a proposal and from advocating its passage or failure, is not unconstitutionally overbroad.

Carrigan was an elected councilmember. In 2005, the city held public hearings regarding a proposed large-scale casino/hotel development. One of the consultants for the casino was also Carrigan's former campaign manager. Carrigan solicited the City Attorney on how to handle the situation. The City Attorney recommended that Carrigan did not need to abstain from voting, but he did need to disclose his prior relationship with the consultant, which he did. The Nevada Ethics Commission censured Carrigan for not recusing himself, basing its decision on a Nevada law that required elected officials to abstain from voting in situations with the following relationships: 1) another member of the official's household; 2) someone related by blood or marriage; 3) an employer; 4) engaged in a business relationship; and 5) a relationship 'substantially similar' to the first four relationships. It was this "catch-all" category that was used to reprimand Carrigan. Carrigan brought a challenge under the First Amendment, claiming that the ethics law violated his protected political speech, was overbroad, vague and constituted a prior restraint. IMLA participated in favor of Carrgian in this case because we felt that the law was too vague, and confuses officials (and the local government attorneys who advise them) as to when to abstain from voting.


Filed February 7, 2011 (merits-stage brief)

Fox v. Vice READ BRIEF HERE
Pro Bono Author: Pierre Bergeron
Held: When there are both frivolous and non-frivolous claims in a plaintiff's civil rights suit, a court may grant reasonable attorney's fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.

The Town of Vinton Louisiana was part of Section 1983 action in suit arising out of a heated election for Chief of Police. A federal court ultimately ruled that all of the plaintiff's federal claims were frivolous but there were other state law claims deemed not frivolous. The Town then sought and won attorneys fees on the frivolous claims. Mr. Fox appealed, claiming that the Town was not a "prevailing defendant" because there were still state law claims yet to be resolved. IMLA joined this case arguing that the fees here were properly awarded -- both because the inclusion of even one non-frivolous claim does not insulate a plaintiff from attorney fee liability for frivolous claims, and because the lower court had properly attributed the fees to the frivolous claims. IMLA joined this case because if Mr. Fox prevailed in this case, a plaintiff need only include one non-frivolous claim and can include numerous frivolous claims and still emerge unscathed from attorney fee liability. Cities fiscal resources are limited, and while cities accept the responsibility of defendant non-frivolous claims, taxpayers should not have to pay for cities to defend clearly frivolous claims.


 

Petition Stage Supreme Court

Filed February 8, 2016 (Supreme Court – Petition Stage)
City of Houston v. Zamora
No. 15-868
Pro Bono Author: Thomas Hunger, Jason Neal and Andrew Davis

Zamora is a police officer with the Houston Police Department (HPD). His father brought a race discrimination claim against HPD and later, Zamora brought a separate charge claiming that HPD retaliated against him for his father’s lawsuit by removing him from a prestigious unit he was on. After three of his supervisors were deposed as a part of the lawsuit, Zamora brought a complaint with the HPD’s Internal Affairs Division (IAD), claiming that those three supervisors had lied under oath and colluded to remove him from his position.

This complaint set off a formal review process by IAD, resulting in a 170 page investigative report written by a Sergeant who collected statements from 22 witnesses (including Zamora, his father and the three supervisors). A Lieutenant reviewed the report and concluded that the allegations against the supervisors were unfounded and moreover, found that Zamora had been untruthful in his statements in the IAD investigation and therefore recommended that Zamora be suspended. The city’s Administrative Discipline Committee (ADC) then reviewed the Lieutenant’s recommendation. The ADC was established by the Mayor to review police investigations of officer misconduct and consists of non-law enforcement civilians. The ADC also found Zamora had been untruthful and recommended suspension for 10 days. That recommendation was then reviewed by additional layers within HPD, and ultimately HPD’s Chief of Police upheld the finding and suspension.

Zamora amended his federal district court retaliation claim to include a retaliation claim based on the IAD suspension for his untruthful statements. Around this same time, an independent arbitrator overturned his suspension (he had sought review of the decision via arbitration). Nonetheless, his suit went forward and a jury ultimately found in Zamora’s favor.

The Fifth Circuit held that the “cat’s paw” theory of liability identified in Staub v. v. Proctor Hospital, 562 U.S. 411 (2011) was a viable theory of liability in the context of a Title VII retaliation claim. The court so held, despite the fact that Staub involved a claim requiring a plaintiff to only prove the discriminatory animus was a “motivating factor” in the adverse employment action, whereas the Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) requires a “but for” showing for causation in retaliation claims. On this point, the Fifth Circuit found that “but for” the testimony of the three supervisors which was allegedly motivated by retaliatory animus, Zamora would not have been suspended.

The Fifth Circuit rejected the city’s argument that the “many layers of review between the CRU supervisors’ statements and the ultimate decisionmaker” broke the chain of causation and made the cat’s paw theory of liability inapplicable here.

The issues before the Court in the petition for certiorari are:

1. Whether the “cat’s paw” theory of liability recognized in Staub v. Proctor Hospital, 562 U.S. 411 (2011), for statutes that require animus to be merely a “motivating factor” in an adverse employment decision is equally applicable to statutes that demand prohibited animus to be the “but-for” cause of the adverse action.

2. Whether the “cat’s paw” theory of liability extends to employment actions taken after an extensive internal review process that considers testimony from nearly two dozen witnesses and provides multiple layers of independent review, including an independent review board with citizen involvement, just because a federal jury ultimately reaches a different conclusion about witness credibility.

In addition to arguing that the Fifth Circuit’s decision was wrong in its application of the law, IMLA’s brief argued that the decision exposes public employers to expansive liability and undermines careful internal review procedures that are designed to protect employees and the public alike.


Filed February 3, 2016 (Supreme Court Petition Stage)
United States Air Funds, Inc. v. Bible
No. 15-861
Pro Bono Author: Ashley Johnson


The question this case presents is whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), which requires courts to defer to agency interpretations of their own regulations, even where such interpretations first appear in things like an amicus brief (as was the case here).

When Bryana Bible defaulted on her student loan, USA Funds stepped in as the guarantor of the loan. The loan is governed by a Promissory Note subject to the Higher Education Act and regulations promulgated by the Department of Education. When Bible signed the Note, she agreed that “[i]f she default[s] on any loans, [she] will pay reasonable collection fees and costs, plus court costs and attorney fees.” After Bible’s lender found her in default, USA Funds paid the default claim and the lender transferred the loan to USA Funds. USA Funds sent Bible a letter providing options for rectifying her default, including an alternative payment plan or a rehabilitation agreement. Bible and her lawyers chose the latter and agreed to pay $50 a month for at least nine months so that the default would not remain on her record. And consistent with the terms of the agreement, USA Funds assessed reasonable collection costs.

Bible sued, on behalf of a putative nation-wide class of defaulted borrowers, alleging that charging her collection costs not only breached the terms of the regulations incorporated into the Note, but also violated RICO—and entitled her (and the putative class) to treble damages and attorneys’ fees.

The district court dismissed the complaint for failure to state a claim. On appeal, the Seventh Circuit panel invited the Department of Education to submit an amicus brief expressing its views. The Department did so, announcing for the first time that it interpreted its regulations as categorically prohibiting the collection costs. In support, the Department invoked another, separate, regulation stating that collection costs may not be assessed when a borrower undertakes a “repayment agreement” that the guaranty agency determines to be “satisfactory,” and the Department asserted that a “rehabilitation agreement” is, and must always be, a “repayment agreement on terms satisfactory to the [guaranty] agency”—even though the Department’s own website (as well as the statute) states that collection costs “may” be applied to rehabilitation agreements, and even though that website states that “repayment” is an option separate from “rehabilitation” for those in default on their student loans.

The Seventh Circuit was divided and Judge Flaum provided the controlling concurrence, holding that the court is required by Auer to accept the agency's view that collection costs may not be assessed against borrowers who sign rehabilitation agreements.

The Seventh Circuit denied the motion for rehearing en banc. In his concurrence of the denial, Judge Easterbrook noted:

[W]hether Auer supports the Secretary’s current position . . . is a substantial and potentially important question, but an antecedent issue is whether Auer is sound. In concurring opinions to Perez v. Mortgage Bankers Association, three Justices (including Auer’s author) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking.

I do not think that it would be a prudent use of this court’s re-sources to . . . consider how Auer applies . . . when Auer may not be long for this world. The positions taken by the three members of the panel show that this is one of those situations in which the precise nature of deference (if any) to an agency’s views may well control the outcome.

IMLA’s amicus brief argued that from a practical standpoint, Auer deference provides a perverse incentive for administrative agencies to draft vague regulations or effectively rewrite their regulations without going through notice and comment rulemaking, under the guise of merely “interpreting” those regulations, knowing that reviewing courts must in nearly all instances give those “interpretations” binding effect—even when they are announced for the first time in an amicus brief, as in this case.  Not only are local governments burdened through litigation by agencies that interpret their regulations in this manner, but local governments also often regulate in the same space as those agencies so they have an interest in those agencies providing clarity in their regulations so that local regulations do not inadvertently conflict with federal regulations and risk preemption.


Filed January 22, 2016 (Supreme Court Petition Stage)
Blanchard & Walworth County v. Brown
No. 15-824
Pro Bono Author: Sarah Shalf

The issue in this case is whether, on an interlocutory appeal from the denial of qualified immunity, a circuit court must accept a district court’s conclusion that there are material disputes of fact or that the factual disputes are genuine.

The facts of this case involve a suicidal young man, John Brown. His mother called 911 after finding that he had cut himself in his bedroom with a knife. Shortly thereafter, two officers arrived on the scene; officer Blanchard and officer Such. After his mother conveyed the relevant information to the officers, including that the knife was in her son’s possession, she went into the living room of the mobile home where she could no longer see what transpired, however, she could hear the officers from there. Officer Such went outside to look through the bedroom window and saw Mr. Brown drinking a beer and smoking a cigarette. Officer Such radioed that information and returned to officer Blanchard. Officer Blanchard kicked in the locked bedroom door. Both officers observed Mr. Brown holding a knife with blood dripping down his arm. He walked over toward the officers and closed the door on them. Officer Blanchard then kicked in the door again and, according to the officers, he ordered Mr. Brown to drop the knife and told him they would have to shoot him if he did not drop it. Instead of dropping the knife, Mr. Brown raised the knife over his head and advanced on the officers. When he was within 5-6 feet of the officers, officer Blanchard shot and killed him.

Mr. Brown’s mother disputes that the officers told her son to drop the knife and she claims she heard her son say “fine, come in and shoot me between the eyes and kill me.” It is undisputed, however, that she could not see the events that transpired and that she therefore did not know whether her son had threatened the officers with the knife by raising it and advancing on them.

The district court held that the mother’s testimony that the officers did not tell her son to drop the knife discredited their testimony regarding whether Mr. Brown had threatened them with the knife. The court therefore found a dispute of material fact as to whether the officers had been threatened (despite the uncontradicted testimony on this point as the officers were the only ones able to see the events) and concluded that qualified immunity was therefore inappropriate.

The Seventh Circuit concluded that its review of the denial of qualified immunity on an interlocutory appeal is limited and that it cannot “determine whether the district court erred in finding that a genuine issue of material fact exists.” The court therefore determined that it must accept the district court’s conclusion that there was a genuine dispute of material fact as to whether Mr. Brown had raised the knife and advanced on the officers at the time he was shot. After so concluding, the Seventh Circuit held that the denial of qualified immunity was appropriate because it was clearly established that the use of deadly force against a nonresisting or passively resisting suspect was unjustified.

In arguing that certiorari should be granted, IMLA argued that the Supreme Court’s jurisprudence on appellate review of qualified immunity at the summary judgment stage is unclear and therefore has created a circuit split necessitating the Court’s review.


Filed December 16, 2015 (Supreme Court Petition Stage)
Wasatch County v. Ute Indian Tribe
No. 15-640
Pro Bono Author: Erik Jaffe

Status: Certiorari was denied on March 21, 2016.

The underlying facts of this case are largely irrelevant and involve a long tortured litigation history between Utah, some of the counties in Utah, and a Native American Tribe; the Ute Indian Tribe (the “Tribe”). The dispute centers on what the boundaries of the Tribe’s reservation are.

Relevant for IMLA’s purposes was that the Tenth Circuit enjoined Wasatch County from prosecuting a member of the Tribe based on an exception to the Anti-Injunction Act that permits enjoining a state court proceeding to enforce a prior federal court judgment. Notably, however, the county was not a party to the prior case (which did not even produce an enforceable judgment as the parties settled). The Tenth Circuit nonetheless held that every county was in privity with the State who was a party to the prior suit even though there was no evidence that the State had litigated the prior litigation with Wasatch county’s interests in mind. To the contrary, the State settled with the Tribe and the county received nothing for that settlement.

On this privity point, the Tenth Circuit noted “[i]t’s not just parties who are bound by prior decisions: those in privity with them often are too, and counties are usually thought to be in privity with their states for preclusion purposes when the state has lost an earlier suit.” (emphasis added).

The question presented in the petition for certiorari is: “Did the court of appeals err in defying this Court’s decision in Hagen v. Utah and enjoining a proper state court prosecution of a tribal member on lands that this Court has held have been diminished by Congress?” Because IMLA’s brief focused solely on the privity issue, and not on boundary dispute, IMLA framed the issue as whether a local government is in privity with a state for preclusion purposes when there is no evidence that this particular local government’s interests were litigated or protected by the state.


Filed December 14, 2015 (Supreme Court Petition Stage)
Michigan Gaming Control Board v. Moody
No. 15-623
Pro Bono Author: Marcelyn Stepanski

The Michigan Gaming Control Board (MGCB) regulates harness racing, a form of horse racing, in Michigan. In the course of investigating allegations of illegal race-fixing, Michigan horse-racing stewards asked the plaintiffs, who were all harness drivers, questions that they construed as possibly self-incriminating. Invoking the Fifth Amendment to the Constitution, the harness drivers refused to answer. Because of this refusal, the MGCB suspended the harness drivers’ licenses to race and excluded them from horse-racing grounds.

The harness drivers sued the MGCB and its employees in federal district court under §1983 seeking damages and injunctive relief. Relevant to this case is the Supreme Court’s decision Garrity v. New Jersey, which held that confessions given by public employees (police officers) threatened with job loss were “coerced” and, therefore, the Fifth Amendment barred their use in a criminal proceeding. 385 U.S. 493 (1967).

The Sixth Circuit held that the Fifth Amendment of the Constitution entitled the harness drivers to refuse to answer potentially self-incriminating questions unless the state immunized them from prosecution and by punishing them – i.e., revoking their license and excluding them from the grounds– the MGCB violated their constitutional rights. In so holding, the Sixth Circuit relied on Garrity despite the fact that there were no criminal proceedings. The Sixth Circuit therefore held that the plaintiffs had a viable §1983 claim and remanded on the question of whether the right was clearly established at the time of the violation.

The petition for certiorari raises the following two questions:

1. Does the 5th Amendment hamstring State gambling regulators by requiring them to obtain a formal grant of immunity from all potential prosecutorial agencies before taking administrative action against a licensee who invokes his 5th Amendment privilege not to answer regulatory-related questions?

2. Can a regulatory licensee prove a civil-rights claim premised on a violation of 5th Amendment rights when the licensee has not given incriminating statements or been subjected to criminal proceedings?

IMLA’s brief focused on the case’s significance to local governments in terms of employment and for code enforcement purposes.


Filed September 10, 2015 (Merits-stage brief; SCOTUS)
Franchise Tax Board of California v. Hyatt
No. 14-1175
Petition-stage brief filed April 24, 2015
Petition Stage Pro Bono Author: Quin Sorenson
Merits Stage Pro Bono Author: Quin Sorenson
Status: Certiorari was granted on June 30, 2015

This case involves a former California resident who earned hundreds of millions of dollars in licensing fees during the time that he lived in California before moving to Nevada. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit.

The Nevada Supreme Court held that the discretionary-function immunity for a governmental entity and its employees was not applicable in this case because the Nevada Court recognizes an exception to that immunity for bad-faith conduct. The Nevada Supreme Court also held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada’s public policy because the state’s interest in providing relief to its citizens outweighs the comity principles.

The petition raised three issues for review by the Supreme Court: (1) Whether the federal discretionary-function immunity rule, 28 U.S.C. §2680(a), is categorically inapplicable to intentional torts and bad-faith conduct; (2) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (3) Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent should be overruled.

IMLA submitted an amicus brief at the petition stage focusing on the first and second issue and certiorari was granted on June 30, 2015.



Filed August 13, 2015 (Supreme Court – Petition Stage)
Schott v. Wenk
No. 15-54
Pro Bono Author: Francisco Negron

Status: The petition for certiorari was denied on January 11, 2016.

Nancy Schott, the public school director of pupil services, made an allegation of child abuse against Peter Wenk, the father of a child at Ms. Schott’s school. And while much of the information in her report is contested by her colleagues, the Sixth Circuit accepted that her report was not materially false and that it could support a “reasonable basis” to suspect child abuse. The subject of the report claimed that Schott filed the report in retaliation for him requesting a “special ed prom” for his daughter and for his request that his daughter’s education plan be changed to include more social opportunities. School officials are mandatory child abuse reporters in Ohio.

The Sixth Circuit denied Schott qualified immunity concluding that a reasonable person in her position would have known that she was violating the Wenks’ First Amendment rights. The court cited circuit precedent holding that school officials can be liable for making false child abuse reports in retaliation of parents exercising their First Amendment rights. Schott pointed out that Ohio’s child abuse reporting statute immunizes reports made in bad faith. The Sixth Circuit responded: “The Supreme Court has long held ‘that a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy, . . . which of course already provides certain immunities for state officials.’”

The petition for certiorari raises three issues for consideration, of which, the following two were addressed by the brief submitted by IMLA: (1) Whether a mandatory child abuse reporter is entitled to qualified immunity when there is evidence in the record to support a reasonable basis to suspect abuse and the report is not materially false; (2) Whether a constitutional retaliation claim under the First Amendment against a mandatory reporter of child abuse is cognizable under Section 1983 even where reasonable grounds exist to suspect abuse and where the report is not materially false.


 

Filed April 14, 2015 (Petition-stage brief; SCOTUS)
Securities and Exchange Commission v. City of Miami & Bordeaux
No. 14-10363
Petition-stage Pro Bono Author: Sarah Shalf
Amicus Brief to the Eleventh Circuit filed November 13, 2014
Eleventh Circuit Pro Bono Author: Jay Solowsky 

Status: Certiorari was denied on June 29, 2015

The SEC instituted a civil enforcement action against both the city of Miami and various financial officials, including the Budget Director for the city, alleging that they committed securities fraud through both misrepresentations and omissions in their financial documents. The city and the Budget Director argued that the Budget Director was entitled to qualified immunity as a matter of law because he was acting within the scope of his duties when the alleged misconduct occurred.

The Eleventh Circuit upheld the district court’s denial of qualified immunity for the Budget Director, reasoning that the doctrine of qualified immunity did not bar the SEC’s action seeking civil penalties against the Budget Director (as opposed to where a plaintiff seeks damages).

The Budget Director submitted a motion for rehearing en banc to the full panel for the Eleventh Circuit and IMLA submitted an amicus brief supporting that appeal. The full panel denied the motion for rehearing and the Budget Director petitioned the Supreme Court for certiorari. IMLA will also submit an amicus brief in support of the petition for certiorari.

The issue is being framed broadly in the petition for certiorari. The question presented is whether municipal employees should be entitled to assert the defense of qualified immunity in non-Section 1983 matters (a question that the circuit courts are currently split on).


Filed March 4, 2015 (Petition-stage brief; SCOTUS)
Animal Care Trust v. United Pet, Inc.
No. 14-954
Pro Bono Author: Linda Coberly & Geoffrey Eaton

Status: Certiorari was denied on June 1, 2015

The city of Chattanooga contracts out its animal-welfare services to a private non-profit corporation (“McKamey”). McKamey was under contract with the city to provide animal services and to enforce the city’s ordinances regarding animal welfare within the city. Their officers are commissioned by the city as special police officers to provide those services and they are authorized by the city to investigate complaints of neglect and animal cruelty and to issue citations on behalf of the city. Two of the three individual defendant employees of McKamey were commissioned as special police officers of the city and one was not. McKamey received complaints about abuse, neglect and unsanitary conditions regarding a store selling pets, United Pet Supply, Inc. (the “pet store”), including reports of a dead puppy. When the McKamey employees went to the store to investigate, they discovered that the pets were being maintained in inhumane conditions and they proceeded to remove the animals and certain business records from the store.

The store brought a § 1983 case against the individual employees of McKamey as well as McKamey and the City of Chattanooga claiming that the removal of the pets and revocation of the pet store’s permit without a hearing violated the store’s due process rights and constituted a warrantless seizure of its animals and business records in violation of the Fourth Amendment. McKamey and the three individual employees claimed they were entitled to qualified immunity on all claims.

The Sixth Circuit held that the two individual employees who were commissioned as special police officers by the city could assert the defense of qualified immunity, however, the individual who was not commissioned as a special police officer was not entitled to assert the defense of qualified immunity. The Sixth Circuit also held that the company was not entitled to assert the defense of qualified immunity, just as the city cannot assert qualified immunity.

The issue before the Court is whether private companies and their employees should be entitled to assert the defense of qualified immunity where they are contracted by a municipality to perform functions traditionally performed by government.


Filed February 20, 2015 (Petition-stage brief; SCOTUS)

Baltimore City Police Dept., et. al v. Owens
No. 14-887
Pro Bono Author: Glen Allen

Status: Certiorari was denied on April 27, 2015

The Respondent was convicted of rape and murder in 1988 and was later released based on DNA evidence. He brought a §1983 complaint, alleging, among other things, that the Baltimore City Police Department and the individual police officers violated his constitutional rights by intentionally withholding exculpatory evidence during the 1988 trial.

The defendant’s conviction was vacated in 2007 based on the DNA evidence. The state filed a nolle prosequi in October of 2008. In Maryland a nolle prosequi has no final effect on criminal proceedings unless jeopardy has attached or the statute of limitations has run on the criminal charge. In Maryland murder is not subject to limitations.

The Respondent’s claims against the police and the prosecutor were that an accomplice who testified at the trial against him gave several conflicting statements to the police (the police agree) but that the prosecution did not turn this evidence over to the Respondent at his criminal trial so that the accomplice could be cross examined.

The city argued that the statute of limitations began to run when the cause of action accrued, i.e., when the conviction was vacated in 2007, and the complaint should therefore be dismissed. However, the Fourth Circuit concluded that limitations for cases involving Brady violations do not run until the case is finally concluded and the Fourth Circuit held that the final conclusion was entry of the nolle prosequi in 2008.
The second issue in the case is whether the police officers in 1988 were aware that they were subject to personal liability for failing to disclose Brady material to the prosecutor. The Fourth Circuit concluded that they should have known based on Fourth Circuit precedent that they could be personally liable and qualified immunity was therefore inappropriate. However, a review of the case law from that circuit suggests that the issue was not so clear and that as late as 1997 the Fourth Circuit seemed to have a murky view of the issue. Perhaps more to the point, the Fourth Circuit used a case decided about a year after the events in this case to conclude that the issue was settled in the circuit.

There are two issues before the Court in this petition. First, when does the statute of limitations begin to run in a case that is reversed for a Brady violation? The city contends, and IMLA agrees, that the statute of limitations should begin to run in a case involving a Brady violation when the conviction that is based on a Brady violation is vacated, as a retrial will not implicate the Brady violation and the civil action can proceed without implicating any further criminal trials.

The second issue in the case is whether the police officers in 1988 were aware that they were subject to personal liability for failing to disclose Brady material to the prosecutor. In other words, the question before the Court is whether police officers have an independent duty under Brady to provide exculpatory evidence to the defense.


Filed January 16, 2015 (Merits-stage brief; SCOTUS)
City and County of San Francisco v. Sheehan
No. 11-16401
Petition-stage amicus brief filed on June 26, 2014
Pro Bono Author (merits and petition): Sarah Shalf
Held: The first issue, i.e., whether the Americans with Disabilities Act applies to police officers effectuating an arrest, was dismissed as improvidently granted. Regarding the second issue, Court held that police officers who were faced with an armed, violent, mentally ill suspect who had already made death threats to three people did not violate clearly established law when they entered the suspect’s residence instead of trying to accommodate her disability and that they were therefore entitled to qualified immunity

In this case, two police officers were called by a social worker to take Sheehan (the Respondent) into custody for an involuntary mental evaluation after Sheehan had threatened a social worker with a knife. When the officers arrived, they opened the door to Sheehan’s residence and she threatened to kill them and brandished a knife. They closed the door to her residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest, in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when that didn’t work, they shot her several times. She survived and sued under 42 U.S.C. § 1983 and the ADA.

The Ninth Circuit agreed with the district court that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers’ ultimate use of deadly force under the circumstances. However, the Ninth Circuit held that the officer’s second entry into Sheehan’s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan’s claim under the ADA, the Ninth Circuit held that the “reasonable accommodation” requirement of Title II of the ADA applies to officers’ conduct in the course of an arrest – including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan’s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her “comfort zone” until they were able to calm her down), was one for the jury.

The Supreme Court granted certiorari on two issues: (1) whether the ADA requires police officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of an arrest; and (2) whether it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence.

IMLA’s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded the broad discretion in these circumstances.

The Court dismissed the first issue regarding the ADA as improvidently granted.

Regarding the Fourth Amendment issue, the Court noted that the “real question” was “whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability.” Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question – i.e., whether the officers violated the Fourth Amendment by entering the suspect’s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that court that it has “repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established at a high level of generality…Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan’s home was justified both under the continuous search rationale and the exigent circumstances rationale.


Filed August 29, 2014 (Petition-stage brief; SCOTUS)
Wyatt v. Gonzalez
No. 14-108
Pro Bono Author: Jill Williams
Status: Certiorari was denied on November 17, 2014

This case involves a question of whether a police officer was entitled to qualified immunity after he used deadly force when he became a prisoner in a vehicle controlled by an individual who had already committed several dangerous felonies. The Ninth Circuit held that because the parties disputed how fast the van was traveling at the time the trapped officer shot and killed the driver, summary judgment was inappropriate as a reasonable jury could conclude that the use of deadly force violated the Fourth Amendment. In a scathing dissent, Judge Trott explains that the majority’s focus on the speed of the van is entirely misplaced for the purposes of the Fourth Amendment and that under Garner and other well-established Supreme Court precedent, the officers’ actions were objectively reasonable under the circumstances. Specifically, Judge Trott notes that the “factual dispute” relied upon by the majority - i.e., the speed of the van at the time the officer shot the driver – is not a “material” fact and therefore should not have been considered in the Fourth Amendment reasonableness analysis.

The issue before the Supreme Court is whether, contrary to precedent in Scott v. Harris, 550 U.S. 372 (2007) and Rule 56 of the Federal Rules of Civil Procedure, the Ninth Circuit erred when it concluded that immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” even where the plaintiff offered no contradictory evidence. IMLA’s brief argues that the Ninth Circuit’s holding renders Rule 56 of the Federal Rules of Civil Procedure essentially impotent in excessive force cases brought under 42 U.S.C. § 1983.


Filed August 18, 2014 (Petition-stage brief; SCOTUS)
Schultz v. Wescom
No. 14-59
Pro Bono Author: Adam Rosenberg
Status: The Supreme Court denied certiorari on December 15, 2014

This case involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until the completion of discovery. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable. In this case, the Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it is not a denial of qualified immunity.

If the Ninth Circuit is correct, municipalities and police officers will be required to expend far greater resources before being able to move for summary judgment. IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process and it is certainly in municipalities/police officers’ best interest to have questions of qualified immunity resolved at the earliest possible time-frame.


Filed August 18, 2014 (Petition-stage brief; SCOTUS)
City of Newport Beach v. Pacific Shores Properties, LLC
No. 14-56
Pro Bono Author: Tiffany Israel
Status: The Supreme Court denied certiorari on November 3, 2014

The City of Newport Beach enacted an ordinance restricting group living arrangements, which on its face does not single out any particular group living arrangements. Prior to the ordinance’s enactment, “group homes” – i.e., homes in which recovering alcoholics and drug users live communally – were generally permitted in the City’s residential zones. According to the Ninth Circuit decision, the practical effect of the ordinance was to prohibit new group homes from opening in most residential zones and to require existing group homes to undergo a permit process to continue their operations. According to the Ninth Circuit and the plaintiffs in the case, the purpose behind the ordinance was to limit and eventually eliminate group homes from the City’s residential zones. The plaintiffs brought suit under the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), attacking the validity of the ordinance as persons recovering from addiction are protected from housing discrimination.

The Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, a jury could find—based on the history that preceded the ordinance’s enactment and comments made during city council meetings—that the facially neutral ordinance was motivated by an improper desire among city officials and local residents to discriminate against recovering addicts. The panel further held that the plaintiffs were not required to identify similarly situated individuals who were treated better than themselves in order to survive summary judgment, despite the fact that they were proceeding on a disparate treatment theory of discrimination.

The issue before the Supreme Court is whether a disparate-treatment claim under the FHA and ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects. IMLA’s amicus brief argues, among other things, that the Ninth Circuit’s decision will have a chilling effect on public comments of elected municipal officials, municipal staff, legal counsel, and members of the public for fear of creating the evidence necessary to support a challenge to proposed municipal action even where no discriminatory effect has been demonstrated.


Filed August 5, 2014 (Merits-stage brief; SCOTUS)
Comptroller v. Wynne
No. 13-485
Merits Author: Paul Clement & Zack Tripp
Petition-stage brief filed on November 18, 2013
Petition stage author: Erich Eiselt (IMLA)

Maryland taxes the entire income of its residents by imposing a state income tax with two components: a State tax and a County tax. The County tax is based on where the individual is domiciled and maintains a principal residence. State law provides for a tax credit for taxes paid to other states, but this credit does not apply to offset a resident’s County tax obligation. The Respondents are a married couple with five children residing in Howard County, Maryland. In 2006, the tax year at issue, Mr. Wynne held a 2.4% ownership interest in a Maryland Subchapter-S corporation based in Howard County. The Wynne’s object to Maryland’s taxing scheme, claiming that the County tax creates a situation of unconstitutional double taxation in violation of the dormant commerce clause. The Maryland Court of Appeals held in favor of the resident tax payers.

The Supreme Court accepted certiorari and will resolve the conflict created by the Maryland Court of Appeals’ decision between a most basic principle of state sovereignty – the right of a state to tax a resident within its boundaries, which has been recognized throughout the history of the Court–and the unwritten, amorphous and arbitrary concept of “dormant” Commerce Clause jurisprudence.


Filed July 21, 2014 (Petition-stage brief; SCOTUS)
Kalamazoo County Road Commission v. Deleon
No. 13-1516
Pro Bono Author: Conor Dugan
Status: The Supreme Court denied certiorari on January 12, 2015

The Respondent, Robert Deleon, worked for the Kalamazoo County Road Commission (“the Commission”). A vacancy arose for a new position within the Commission for which he applied. Deleon was interviewed, but was not ultimately offered the position. The Commission offered the position to another candidate, but that candidate left shortly after he was hired. Subsequently, the Commission transferred Deleon to the position that he had originally applied for. Deleon objected to the transfer (even though he originally requested it) and demanded a raise at the time of the transfer, which he was denied. After the transfer, he took a medical leave and the Commission ultimately terminated his employment after eight months of leave, indicating that he had exhausted all of his available leave.

The Sixth Circuit concluded that a reasonable jury could find that Deleon had suffered an adverse employment action based on the lateral transfer. The court concluded that the mere fact that Deleon had previously applied for the position does not “categorically bar a finding of an adverse employment action.” The court reasoned that the “key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the ‘conditions of transfer’ would have been ‘objectively intolerable to a reasonable person.’”

The question before the Supreme Court was whether an employee has suffered an adverse employment action when an employer transfers the employee to a position that the employee himself requested. IMLA’s brief argued, among other things, that as a result of an existing circuit split, employers do not have a clear, workable standard regarding transfer decisions. Further, the Sixth Circuit’s decision subjects employers to potential liability whether after granting employee requests or denying them, which IMLA noted that it is especially problematic for public-sector employers whose employees are often governed by collective bargaining agreements, which often include provisions regarding transfers.


Filed June 4, 2014 (Merits-stage brief; SCOTUS)
Integrity Staffing Solutions, Inc. v. Busk
No. 13-433
Pro Bono Author: James Ho
Petition-stage amicus brief – Filed on November 7, 2013
Held: The Court unanimously held that the time the employees spent waiting to undergo security screenings was not compensable under the FLSA.

Integrity Staffing Solutions provides temporary warehouse staffing to clients such as Amazon.com. In 2010, two plaintiffs filed a putative collective and class action alleging that pursuant to the FLSA, they, and hundreds of other former and current employees of Integrity, were entitled to compensation for time spent undergoing security screenings at warehouses in which they filled orders for the online retailer.

Integrity filed a motion to dismiss arguing that the time spent clearing security checks at the end of the work day is not compensable under the FLSA, as the security screenings were not “necessary and integral” to the employees’ jobs as warehouse workers. Integrity’s argument in favor of dismissal was consistent with decisions of the Second Circuit and the Eleventh Circuit.

The district court agreed with the holdings of those courts and held that even if the security checks were necessary to the employer’s goal of minimizing employee theft, plaintiffs still did not state a claim upon which relief could be granted because the security screenings were not “necessary and integral” to the employees’ jobs of order fulfillment. Plaintiffs appealed, and with respect to their claim regarding the compensability of time spent proceeding through security screenings, the Ninth Circuit reversed. The issue in this case was whether time spent in the security screenings is compensable under the FLSA. The Supreme Court held that it was not.


Filed April 21, 2014 (Petition-stage brief; SCOTUS)
Koopman v. Myers
No. 13-1143
Pro Bono Author: John Wilkerson
Status: Certiorari was denied

This case implicates important questions for law enforcement regarding whether a claim for malicious prosecution may be brought as a 4th Amendment violation under § 1983.

The Respondent asserts that Detective Koopman obtained an arrest warrant by falsifying an affidavit to create the illusion of probable cause. Pursuant to that warrant, law enforcement searched the Respondent’s property and discovered a jar containing a white substance. Field tests initially incorrectly identified the substance as methamphetamine. The Respondent was then arrested, again, according to the Respondent, as a result of falsified information in another Koopman affidavit, and he spent three days in custody. Additional tests on the substance revealed that it was not a controlled substance and all charges were subsequently dropped against the Respondent on November 15, 2007.

The Respondent brought suit in district court on November 5, 2009 under § 1983, alleging violations of the Fourteenth and Fourth Amendments. The district court granted judgment on the pleadings for all claims, holding that the Fourteenth Amendment claim should be dismissed because an adequate state remedy existed and the Fourth Amendment claim was untimely. The Tenth Circuit reversed the district court’s ruling on the Fourth Amendment claim, reaffirming that in the Tenth Circuit, a claim for malicious prosecution exists under § 1983 and that the statute of limitations began from the date the charges were dropped against the Respondent, not the date that he was arrested.

This case raises the following questions: (1) Whether a §1983 malicious prosecution claim exists under the Fourth Amendment against an investigating police detective; and (2) If such a claim exists, in a situation not involving a conviction should the applicable statute of limitations begin to run when the claimant was detained pursuant to the arrest warrant?


Filed March 24, 2014 (Petition-stage brief; SCOTUS)

City of Chicago v. Jimenez
No. 13-997
Pro Bono Author: Lawrence Rosenthal
Status: Certiorari denied on April 7, 2014

This case involved an appeal from a district court’s finding of a Batson violation and a forfeiture of a peremptory challenge imposed as a sanction. As a result of these rulings, the City was not permitted to exercise one of its three peremptory challenges. Batson requires the district court to make a finding of fact regarding whether the reason the attorney has offered for the use of a peremptory strike is pretextual. In this case, the City tried to strike an African-American juror whose great-nephew had recently been released from prison after serving 14 years for murder. The plaintiff had been released after serving sixteen years for murder. The Seventh Circuit held that on appeal from a ruling that a party has committed a Batson violation (i.e., used a peremptory strike in a discriminatory manner), the court need not review the merits of the district court’s decision unless the appellant can show that the juror was actually biased (a harmless error standard). The Eighth, Ninth, and Eleventh Circuits have similarly held. The court also brushed aside the City’s complaint that it had been deprived a statutorily protected right to 3 peremptory challenges when the court denied its peremptory challenge under Batson and precluded it from exercising the challenge on another juror.

The issue before the Court was whether the denial of a peremptory challenge (as a result of an alleged Batson violation) can only be overturned if the jury was actually biased. According to the 7th Circuit, the erroneous deprivation of a statutory right (right to a preemptory challenge) is necessarily harmless unless there is also a denial of due-process – because of the service of a biased juror. Many members of the Court have indicated in the earlier oral arguments that such a standard could never be met. The case also implicates the underlying fact finding by the district court, which would be effectively unreviewable under this standard. That is a concern to local government lawyers as well as their clients since there is a taint of racial discrimination in the Batson finding.


Filed February 26, 2014 (Petition-stage brief; SCOTUS)
L.A. County Flood Control Dist v. NRDC
No. 13-901
Pro Bono Author: Shawn Hagerty, Roderick Walston
Status: Supreme Court denied certiorari on May 5, 2014

IMLA originally filed an amicus brief in this case the first time it was before the Supreme Court on September 13, 2012 and the Court agreed with IMLA’s argument that the Clean Water Act did not define discharge to include moving water from one part of the same water body to another part of that water body. On remand the Ninth Circuit still found the District liable. From a municipal water quality perspective, the key question is whether a county-wide Municipal Separate Storm Sewer System (MS4) permit may impose liability on the owner of a drainage system that receives pollutants from multiple sources without any evidence that the owner discharged pollutants to the system. The 9th Circuit held that the Flood Control District and the County could be liable without evidence of a discharge. This holding is contrary to the regulations which limit liability to a permittee's own discharges. The holding is also contrary to the Clean Water Act because liability only attaches to discharges from a point source. If the 9th Circuit’s holding were to stand it could: (1) impose liability on any owner of an MS4 even when they don't discharge in a way that is shown to have caused or contributed to the problem; and (2) result in additional regulations/liability for municipalities that discharge into commingled systems since the owners of the systems will seek to share/minimize their risk.


Filed April 3, 2013 (Petition-stage brief; SCOTUS)
City of LA v. Lavan
No. 12-1073
Pro Bono Author: Kira Klatchko
Status: Certiorari denied on June 24, 2013

The City of Los Angeles (“City”) conducts regular and scheduled street cleanings pursuant to ordinance § 56.11, which states that “No person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.” While in many areas of the City, residents no doubt appreciate these sweeps, in the “Skid Row” district where the City’s highest concentration of homeless live, the City’s interest in cleaning and protecting its public ways collides with its homeless residents’ property interests. The City conducts the sweeps to address the excessive proliferation of abandoned personal property on the sidewalks in the Skid Row area. As part of this effort, the City blanketed the area with notices that property left on the sidewalks during these sweeps would be removed and disposed of.

Lavan and eight other homeless people living in the Skid Row district brought suit because on separate occasions between February 6, 2011 and March 17, 2011, during sweeps through Skid Row the City seized and summarily destroyed their personal possessions. Plaintiffs sued the City under 42 U.S.C. § 1983, claiming that the City’s practice of “summarily confiscating and destroying the unabandoned possessions of homeless persons living on Skid Row violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution.”

The 9th Circuit held that the plaintiffs continued to have possessory interests in their unabandoned property, and that by seizing and summarily destroying the plaintiffs’ unabandoned legal papers and personal effects, the City caused a “meaningful interference” with their possessory interests in the property.


Filed December 5, 2012 (Petition-stage Brief; SCOTUS)
Senne v. Village of Palatine
No. 12-573
Pro Bono Author: Quin M. Sorenson
Status: Petition Denied June 24, 2013

Like many municipalities, the Village of Palatine prints the intended recipient’s name, address, and other identifying information on a parking citation before affixing that citation to an illegally parked vehicle. According to the plaintiff in this putative class action, Palatine has violated a federal statute by doing so and should be ordered to pay $2,500 in damages for each and every one of the approximately 32,000 parking tickets that it has issued over a four-year period. As a result of the Seventh Circuit’s en banc decision allowing plaintiff’s case to go forward, Palatine now faces the prospect of massive damages—as much as $80 million—for conduct that the plain text of the statute in question expressly deems permissible.


Filed May 16, 2012 (Petition-stage brief; SCOTUS)
Redevelopment Authority of Montgomery v. R&J Holding
No. 11-1234
Pro Bono Author: Robert J. Tribeck
Status: SCOTUS denied cert on June 18, 2012

There is a long drawn-out history to this case, but in short, this a case about the intersection of a number of land use doctrines, including the Williamson doctrine, issue/claim preclusion, and the England reservation. For those familiar with land use law, it goes without saying that these are some of the more controversial issues in land use (for plaintiffs). However, at the end of the day, there needs to be finality to litigation. This case has already taken 15 years and cost the Authority countless dollars. Allowing two bites at the apple will only cost the Authority more time and money. The Supreme Court itself states in cases like these “we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal.” San Remo.


Filed February 10, 2012 (petition-stage brief)

City of Hugo v. Buchanan
Pro Bono Authors: Janet Spugnardi & Andrew Messer
Status: SCOTUS denied certiorari

While this case deals with a number of issues like water rights, the issue on appeal is one of standing. The City of Hugo (Oklahoma) entered into an agreement with the City of Irving (Texas) for the sale of water. This agreement was prohibited under Oklahoma law and Hugo was denied a permit to effectuate the agreement by the state water board. Hugo sued, and the lower court ruled that the City of Hugo did not have standing to sue its parent-state (political subdivision standing doctrine). IMLA, Texas Municipal League and Texas Municipal Attorneys Association jointly filed a brief in this case.


Filed February 08, 2012 (petition-stage brief)

Comite de Jornaleros v. City of Redondo Beach READ BRIEF HERE
Pro Bono Author: Scott Howard
Status: The Supreme Court denied certiorari

The City's roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City's solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we've read. It's worth reading.


Filed January 03, 2012 (petition-stage brief)
Arlington (TX) v. Frame READ BRIEF HERE
Pro Bono Author: David Canupp
Status: Petition was denied.

The cert petition considered the following question: Does Title II of the ADA mandate that sidewalks constitute a "service, program or activity" within the meaning of Title II? This case presents an important issue for municipalities if a plaintiff comes across a cracked sidewalk or broken curb, they do not have to allege (under the 5th Circuit's decision) that they were denied access to any particular program or service of the city. It is IMLA's position that any city has a duty to provide an accessible route to its programs, but the route itself is not a program. To require a locality to fix each and every crack would require a municipality to devote a unbalanced percentage limited fiscal resources to fixing sidewalks.


Filed August 25, 2011 (petition-stage brief)
City of San Leandro v. Int'l Church of the Foursquare Gospel READ BRIEF HERE
Pro Bono Authors: Howard D. Cohen & Michael Sullivan
Status: Petition was denied

This is a RLUIPA (Religious Land Use and Institutionalized Persons Act) case. The petition asked the Supreme Court to resolve: 1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a "substantial burden" under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006); 2. Whether case-by-case analysis of a land use application constitutes an "individualized assessment" under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006); 3. Whether neutral, generally applicable planning principles may be a "compelling interest" of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(1)(A) (2006).


 

State and Federal Appellate Court Cases

Filed ___, 2016 (New York State Court of Appeals)
Tuturro v. City of New York
No.
Pro Bono Author:

The question presented in this case is whether a government may be held liable for failing to prevent a motorist from speeding on a public roadway based on the municipality’s roadway design decisions.

Here, plaintiff Anthony Turturro was injured when he attempted to bicycle across a four lane roadway, Gerritsen Avenue in Brooklyn, in the middle of the block, and was struck by a speeding car. The driver was going at least fifty-four miles per hour in a thirty-mile per hour zone, and ultimately pleaded guilty to a criminal charge of felony reckless assault for his actions. Gerritsen Avenue is a straight, flat, four-lane road that is divided by double-yellow lines.

Turturro and his mother commenced a negligence action against New York City and the driver. The gravamen of their claim against the City is that a wide, straight road such as Gerritsen Avenue invites illegal speeding, despite posted speed limits, and that the City should therefore have implemented certain traffic control measures on Gerritsen Avenue, known as “traffic calming” measures, that tend to reduce the average speed on a roadway.

Prior to the accident, the City had conducted several traffic studies at locations on Gerritsen Avenue, but ultimately determined that additional traffic lights and other speed mitigation measures were not necessary on the street. The City did send several memos to the police requesting enforcement of the speed limit and it installed additional signage as a result of the studies. The City determined that additional speed mitigation measures were not necessary because the studies showed that Gerritsen Avenue had low vehicle volumes and normal speed levels.

The Appellate Division held that the City was liable for failing to implement proper traffic calming measures.



Filed ___, 2016 (Ninth Circuit)
Hawaii Wildlife Fund et al. v. County of Maui
No.
Pro Bono Author: Shawn Haggerty / Andre Monette

The issue in this case is whether, under the “conduit theory” of liability, the Clean Water Act prohibits the release of pollutants into ground water that eventually migrates to navigable waters.

The Clean Water Act (CWA) does not apply to discharges of groundwater. This case, however, appears to expand the coverage of the Act significantly by using this novel “conduit” theory of liability. Under the conduit theory, according to the district court, any release of pollutants into groundwater that migrates to hydrologically connected navigable waters violates the CWA. This theory has far reaching implications, potentially requiring an National Pollution Discharge Elimination System (“NPDES”) permit for any source – including underground storage tanks, surface impoundments, landfills, and pipelines to name a few – that may release pollutants to groundwater that is hydrologically connected to navigable waters.

In this case, the County of Maui operates a wastewater treatment facility that filters and disinfects the sewage it receives then releases the wastewater into four onsite injection wells. The injection wells are long pipes into which the wastewater is pumped. The wastewater then travels approximately 200 feet underground into a shallow groundwater aquifer beneath the facility. It is undisputed that wastewater from these wells eventually makes its way into the Pacific Ocean and that the County was aware of that fact for some time. Specifically, a 2013 tracer study, conducted on behalf of the EPA, the Army Corps of Engineers and the Hawaii Department of Health, confirmed that treated wastewater from the County’s UIC wells reached the ocean roughly half a mile south of the treatment plant. On average, it took approximately 10 months for groundwater containing County wastewater to enter the ocean along approximately 2 miles of coastline.

The Clean Water Act prohibits the “discharge of any pollutant” unless certain provisions of the Clean Water Act are complied with. See 33 U.S.C. § 1311(a). The Clean Water Act defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Clean Water Act defines "point source" as any “discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” 33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342.

Citizen groups sued, claiming the County needed a NPDES permit for its injection of treated wastewater into the underground injection control wells. The County did eventually apply for a NPDES permit and sought a stay of the proceedings as a result, but the district court denied that motion for a stay.

On the plaintiffs’ motion for summary judgment, the district court held that the County violated the Clean Water Act based on a novel “conduit” theory of liability – i.e., the treated wastewater reached navigable waters without a NPDES permit. Under the conduit theory the court held that the unconfined groundwater acted as a “conduit,” conveying pollutants from the point source – the permitted UIC wells – to the ocean. The district court explained:

This does not mean that groundwater is always and necessarily itself part of the navigable waters of the United States. See 66 FR 2960-01 at 3017 (“EPA does not argue that the CWA directly regulates ground water quality.”); Definition of "Waters of the United States" Under the Clean Water Act, 79 FR 22188-01, 22218 (Apr. 21, 2014) (“The agencies have never interpreted ‘waters of the United States’ to include groundwater.”). An unpermitted discharge into the groundwater, without more, does not constitute a violation of the Clean Water Act. It is the migration of the pollutant into navigable-in-fact water that brings groundwater under the Clean Water Act.


Filed ___, 2016 (North Carolina Supreme Court)
Asheville v. State of North Carolina
No.
Pro Bono Author: Allegra Collins

Through legislation, North Carolina has empowered municipalities to own and operate public water systems and public sewer systems and to serve customers both inside and outside their corporate limits. In 2013, the state passed legislation that required the city of Asheville to cede ownership and control of its public water system to another political subdivision (the “Transfer Provision”). Though the legislation did not expressly reference Asheville by name, the only public water system which met all of the legislation’s criteria for a forced transfer was the Asheville water system.

Asheville sued the state, challenging the legality of the legislation and the trial court enjoined the legislation, concluding it violated the North Carolina Constitution on three separate grounds, as follows: “(1) the Transfer Provision is a ‘local law’ relating to ‘health’, ‘sanitation,’ and ‘non-navigable streams,’ in violation of Article II, Section 24; (2) the Transfer Provision violates Asheville’s rights under the ‘law of the land” clause found in Article I, Section 19; and (3) the Transfer Provision constitutes an unlawful taking of Asheville’s property without just compensation in violation of Article I, Section 19 and 35.”

The appeals court reversed. The appeals court held that the General Assembly’s power includes the authority to organize and regulate the powers of the State’s municipalities and political subdivisions. On the takings issue, the court reasoned that its holding is consistent with Supreme Court precedent that there is no constitutional prohibition against a state withdrawing from a municipality the authority to own and operate a public water system. For this proposition the Court cited City of Pittsburgh v. Hunter 207 U. S. 161 (1907) and Trenton v. New Jersey 262 U.S. 182 (1923).

IMLA’s brief will argue that the Supreme Court precedent relied on by the appeals court did not extend the takings analysis to property that a local government holds in a proprietary capacity and that such property is protected by the Fifth Amendment and may not be taken without just compensation.


Filed November 20, 2015 (California Court of Appeal)

Lamar Central Outdoor, LLC v. City of Los Angeles
No. BS142238
Pro Bono Author: John Baker

The issues in this case are: (1) whether an ordinance that distinguishes between billboards/off-premise advertising and on premise advertising is content based for the purposes of interpreting the speech clause in the California Constitution; and (2) what level of scrutiny should apply (strict or intermediate).

The facts of this case involve an outdoor advertising company that sued the city of Los Angeles when the city denied its permit applications to convert some of its existing offsite commercial signs to digital signs. The city denied the applications because the city had in place a commercial offsite billboard ban. However, the city exempts ideological, political, and other non-commercial messages from the offsite sign ban. Additionally, the city has authorized certain offsite commercial signs through special-use-district permits and some other commercial offsite signs are authorized because the permits were issued prior to the ban’s enactment. According to the city, the purpose of the ban is to promote public safety and welfare by providing “reasonable protection to the visual environment by controlling the [] location of signs…” and to ensure that the signs will not “interfere with traffic safety or otherwise endanger public safety.”

The billboard company brought suit against the city, claiming the ban is unconstitutional under California’s Constitution. The court concluded that the free speech clause under the California Constitution is broad and provides greater speech protection than the U.S. Constitution. The court held that the ban was unconstitutional under the California Constitution. In so holding, it first concluded that the ban was not content neutral both because it distinguished between commercial and non-commercial speech and because it distinguished between on-site versus off-site locations. The court then held that the ban could not withstand the court’s application of strict scrutiny because the city did not show it was narrowly tailored and necessary to achieve the city’s interest in ensuring traffic safety and preserving visual aesthetics. The court noted that even if intermediate scrutiny applied (which is what the city argued should apply), the ban would still not pass constitutional muster.


Filed October 20, 2015 (Ohio Supreme Court)
Newegg & Crutchfield v. Testa
No.
Pro Bono Author: Eric Cintron

Newegg and Crutchfield are out of state retailers that each sell over $500,000 worth of goods in Ohio annually, but have no other physical presence in Ohio. The Ohio Commercial Activity Tax (CAT) applies to anyone with a “bright-line presence” in the state, which includes anyone with taxable gross receipts of at least $500,000 annually.

The highest body to decide this issue so far is the Ohio Board of Tax Appeals. The case is currently being appealed to the Ohio Supreme Court. Both companies argued that the CAT’s application to them was unconstitutional under Quill v. North Dakota because they did not have a “substantial nexus” to the state. The Tax Board refused to rule on CAT’s constitutionality, finding that it did not have the authority to resolve constitutional challenges and the appellate court would need to do so. The Tax Board then concluded that the CAT did apply to Newegg and Crutchfield per the Ohio Legislature by virtue of their “bright line presence” in the state – i.e., their sale of at least $500,000 annually.

Per Quill v. North Dakota (1992), out-of-state sellers must have a “substantial nexus” i.e. a physical presence in a state to be required to collect a use tax. CAT is viewed by Ohio as a tax on the seller for the privilege of doing business (akin to a corporate income tax or business privilege tax) rather than a transactional sales tax on the buyer. Newegg and Crutchfield argue that Quill’s physical presence requirement should apply to CAT because it operates similar to a use tax.

The issue in this case is whether Ohio’s CAT tax is unconstitutional per Quill?



Filed October 8, 2015 (Oregon Supreme Court)
Johnson v. Gibson
No. 1335087
Pro Bono Author: Thomas McPherson

The plaintiff in this case suffered an injury while running in a public park when she fell into a hole created by an uncovered sprinkler head. The individual defendants, who are employees for the City of Portland, Oregon, were responsible for the hole. The plaintiff filed suit for negligence against the individual defendants. The individual defendants claimed immunity under the Oregon Public Use of Lands Act (the “Act”), which grants immunity to "owners" of land who make their property available to the public for recreational purposes. The plaintiff argued that the defendants were not “owners” under the Act, and in any case, if they were, such a finding would violate the Oregon Constitution’s Remedy Clause.
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The district court held that the individual defendants were "owners" and granted them immunity. The district court also found that the Act, as applied to both public and private landowners, including as applied to the defendant employees, did not violate the Remedy Clause of the Oregon Constitution and dismissed the plaintiff’s claim. The plaintiff appealed to the Ninth Circuit and after briefing on the issues, the Ninth Circuit certified two questions to the Oregon Supreme Court, which is where the case is currently pending.

The issues certified to the Oregon Supreme Court are the following:

(1) Whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes can each properly be considered an "owner" of land, as that term is defined in the Oregon Public Use of Lands Act, and therefore immune from actions against them for their own negligence?; and

(2) If employees can be considered to be an "owner" under the Public Use of Lands Act, does the Act, as applied to them, nonetheless violate the Remedy Clause of the Oregon Constitution, Art. I, § 10, if by doing so, their statutory immunity eliminates the only remedy that a Plaintiff has for her injuries and a remedy enjoyed under Oregon law as it existed at the time of the drafting of Oregon's Constitution in 1857?



Filed October 7, 2015 (Ninth Circuit)
Kamakeeaina v. City and County of Honolulu, et. al
No. 14-16042
Pro Bono Author: Adam Rosenberg & Dan Lloyd

In this case, the police officers were called to an apartment building for a domestic disturbance and they found the victim lying on the floor bleeding outside the apartment. She and another witness indicated that the assailant was inside the apartment and that he was suicidal and had a knife. The officers entered the apartment with their weapons drawn and found the plaintiff, who was visibly intoxicated on the balcony, where he had barricaded himself.

Although he was intoxicated, he was coherent and he responded to the police officers’ questions throughout the encounter. Other than two brief threats that he would jump from the balcony if the officers drew near, the plaintiff made no other suicidal threats to the officers. The police officers later testified that they believed he made those threats in order to evade arrest. After an hour, the plaintiff surrendered without incident.

The Honolulu police department has a policy requiring that “every arrestee is asked by CRD personnel whether they are sick, injured, taking prescription medication, or have to go to the hospital for any reason.” The officers indicated that they twice asked if the plaintiff required medical attention, but that he did not indicate that he needed any. The plaintiff disputed that they asked him that. The plaintiff did not attempt suicide while in custody and there was no indication that he was denied treatment at any time for any medical needs.

The district court held that the police officers were entitled to summary judgment as the plaintiff could not establish that they had acted with deliberate indifference toward a serious medical need. While the court found that the risk of suicide is a serious medical need, it concluded that the officers were not subjectively deliberately indifferent to that need. The court concluded that the police officers were not subjectively aware that the plaintiff was at a serious risk of suicide because they had attributed his statements that he was going to jump from the balcony as an attempt to evade arrest. The court also concluded that the plaintiff suffered no actual harm by the defendant’s failure to provide him with medical attention.

The issue on appeal is whether the police officers acted with deliberate indifference to the arrestee’s medical needs by failing to provide him with medical attention based on his threats to jump off the apartment’s balcony. IMLA’s amicus brief will argue, among other things, that if the Ninth Circuit overrules the district court, the rule would put an immense burden on law enforcement to essentially diagnose psychological conditions in the field and such a requirement will detract from their primary law enforcement duties.



Filed July 20, 2015 (Third Circuit Court of Appeals)
Bruni v. City of Pittsburgh
No. 15-1755
Pro Bono Author: Erek Barron

At issue in this case is the validity of the City of Pittsburgh’s buffer zone ordinance in light of the Supreme Court’s decision in McCullen v. Coakley. The ordinance in question states:

[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers, fire and rescue personnel, or other emergency workers in the course of their official business, or to authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic.

Presently, two “buffer zones” are delineated and enforced in the City of Pittsburgh, both of which are located outside of reproductive health care facilities where abortions are performed.

The plaintiffs in this case regularly engage in anti-abortion activities outside of the buffer zone at a downtown Planned Parenthood. Like the petitioners in McCullen, their advocacy takes the form of “sidewalk counseling,” which means they seek to have “quiet conversations and offer assistance and information to abortion-minded women by providing them pamphlets describing local pregnancy resources…” The City of Pittsburgh reads the Ordinance to prohibit sidewalk counseling, as a form of “picketing” or “demonstrating,” within the demarcated buffer zones.

On a motion for preliminary injunction, the plaintiffs argued that the ordinance was invalid under the First Amendment in light of McCullen. The district court held that the plaintiffs were not likely to succeed on the merits and the plaintiffs are appealing that decision to the Third Circuit.



Filed June 24, 2015 (First Circuit Court of Appeals)
Lopez v. City of Lawrence, et. al
No. 14-1952
Pro Bono Author: Christopher Petrini

This case involves a disparate impact claim of discrimination brought by current and former police officers employed by various Massachusetts cities. The police officers, all Hispanic or African-American, claim that the cities’ reliance on a civil service examination in making promotion decisions to the level of sergeant resulted in a disparate impact on them based on their race or ethnicity in violation of Title VII. The examination was developed by the state.

Because many of the cities and towns being sued did not have a large set of data to review – i.e., not that many candidates applied for the position of sergeant in any given year from a particular municipality, the police officers argued that they should be allowed to aggregate the data across different cities in Massachusetts and that they should also be allowed to aggregate data from different years for the same city in order to make out their claim of a disparate impact discrimination.

At issue in this case is how statistics may be used in a disparate impact case, including whether plaintiffs may aggregate data - either across time or across jurisdictions/employers - in order to prove a prima facie case of discrimination in a disparate impact case.



Filed May 20, 2015 (Tenth Circuit Court of Appeals)
Direct Marketing Association v. Brohl
No. 12-1175
Pro Bono Author: Lisa Soronen & Ron Parsons

Colorado enacted legislation requiring out-of-state merchants to summarize their total annual sales to each Colorado customer and report that information to the Colorado Department of Revenue. Colorado passed this legislation in order to attempt to collect the unpaid taxes that these consumers owed the state, but that as studies have shown, the vast majority fail to pay on their own. The district court held that Quill Corp. v. North Dakota, 504 U.S. 298 (1992) applied to the Colorado legislation and ruled that the state’s notice and reporting requirements were discriminatory and violated the Dormant Commerce Clause.

The question in this case is whether the Dormant Commerce Clause requires not only exempting out-of-state retailers from collecting sales tax on sales to the state’s consumers, but also exempting those out-of-state retailers from providing information necessary for states to enforce and collect sales taxes owed by their residents.



Filed November 13, 2014 (Eleventh Circuit En Banc)
Securities and Exchange Commission v. City of Miami & Bordeaux
No. 14-10363
Pro Bono Author: Jay Solowsky

The SEC instituted a civil enforcement action against the city of Miami and various financial officials, including the Budget Director for the city, alleging that they committed securities fraud through both misrepresentations and omissions in their financial documents. The city and the Budget Director argued that the Budget Director was entitled to qualified immunity as a matter of law because he was acting within the scope of his duties when the alleged misconduct occurred.

The Eleventh Circuit upheld the district court’s denial of qualified immunity for the Budget Director, reasoning that the doctrine of qualified immunity did not bar the SEC’s action seeking civil penalties against the Budget Director (as opposed to where a plaintiff seeks damages).

The Budget Director submitted a motion for rehearing en banc to the full panel for the Eleventh Circuit and IMLA submitted an amicus brief supporting that appeal. The full panel denied the motion for rehearing and the Budget Director petitioned the Supreme Court for certiorari. IMLA also submitted an amicus brief in support of the petition for certiorari.


 Filed May 15, 2015 (Tennessee Supreme Court)

Metropolitan Government of Nashville v. The Board of Zoning Appeals
No. 12910II
Pro Bono Author: Travis Hawkins

Held: The Tennessee Supreme Court held that Nashville had standing to challenge the board of zoning appeals’ decision because the city could be “aggrieved” by the actions of the zoning board.

The Tennessee Supreme Court will decide whether a municipal government has standing to seek certiorari of its own board of zoning appeals decision.

In this case, a company that builds and manages billboards applied for permits to convert two static billboards to digital billboards. The zoning administrator denied the applications and the company thereafter appealed to the Board of Zoning Appeals (BZA), which reversed the zoning administrator’s decision and granted the permits. Nashville filed a petition for writ of certiorari to the trial court, seeking review of the BZA decision and the trial court dismissed the petition on the grounds that Nashville did not have standing to bring the proceeding.

The Court of Appeals of Tennessee reversed the trial court’s determination, finding that Nashville did have standing to seek certiorari of the BZA because Nashville was an aggrieved party due to the fact that the BZA’s decision interferes with its ability to fulfill its obligations under the local zoning code. The Court of Appeals also rejected the company’s argument that Nashville could not sue its own BZA because it would be in effect suing itself.


Filed May 27, 2015 (Tennessee Supreme Court)

The Tennessean v. Metropolitan Government of Nashville
No. M2014–00524
Pro Bono Author: Devin Lyon

The issue in this case is whether a newspaper is entitled to everything a criminal defendant would get through the criminal discovery process pursuant to a request to access public records.

Pursuant to the Tennessee Public Records Act (TPRA), various media outlets requested access to records accumulated and maintained by the Nashville police department in the course of its investigation and prosecution of an alleged rape at Vanderbilt University. The police department refused the request due to the fact that the investigation and prosecution were ongoing. The media outlets sued claiming they were entitled to the records under the TPRA.

The city argued that the records were exempt from disclosure under the TPRA due to a rule of criminal procedure which does not authorize discovery of documents made by law enforcement in connection with an ongoing investigation. The appeals court agreed, concluding that in light of the pending investigation and prosecution, access to the records under the TPRA was not required.


Filed September 28, 2015 (California Supreme Court)

Ardon v. City of Los Angeles
No. S223876
Pro Bono Author: Kira L. Klatchko

In this case, an attorney involved in adverse litigation with the city made a public records request as a part of that litigation. As part of a larger response to that public records request, a city employee inadvertently disclosed three records that were protected from disclosure by the attorney-client privilege and/or attorney work product doctrine. The city employee who disclosed the records was not the holder of either privilege and the respective holders of the privileges had not authorized the employee to disclose the records, or delegated to the employee authority to decide whether to waive the privileges.

The Court of Appeal, relied on a general provision in the Public Records Act that a public entity may not pick and choose who has access to public records and concluded that the disclosure of the records waived the privilege.

The issue in this case is whether inadvertent disclosure of privileged documents waives the attorney-client privilege and the work product doctrine if the disclosure is made pursuant to the Public Records Act as opposed to a discovery request.


Filed July 29, 2015 (California Supreme Court)

Lynch v. California Coastal Commission
No. S221980
Pro Bono Author: Jennifer Henning

The issue in this case is whether landowners can irrevocably commit to non-fee permit conditions in writing, but then later renege and claim that they only agreed to the conditions under protest or duress.

This case arises from two beachfront homeowners’ attempt to challenge certain coastal development permit conditions. The homeowners own bluff-top homes in Encinitas, California. Each property has a fairly flat area that is developed and then a steep bluff face that cascades down to the ocean. The homeowners sought to remove their then-existing shoreline protection and build a new 100-foot long, 29 foot high seawall and to rebuild the lower portion of a private access stairway that tied into the seawall. While their permits were pending, much of the existing seawall and stairway collapsed during a storm. The California Coastal Commission (CCC) approved a permit amendment to allow demolition and reconstruction of the seawall, however, as a part of the permit, the CCC implemented various special conditions, including the preclusion of the reconstruction of the lower section of the stairway and the CCC limited the duration of the permit itself to 20 years. The CCC argued that the special conditions were necessary given the uncertainty about how rapidly the sea level will rise. Both homeowners signed a Notice of Intent to Issue a Permit and in so signing, they agreed to all of the conditions in the permit, including the special conditions. The homeowners then recorded the deed restrictions after signing them and proceeded to file a writ of mandate in superior court challenging the special permit conditions.

The Court of Appeal found that the homeowners had waived their right to challenge the permit conditions when they signed and recorded the deed restrictions, thereby signifying their agreement to those permit conditions.


Filed April 13, 2015 (Texas Supreme Court)

City of Dallas v. Albert, et. al
No. 13-0940
Pro Bono Author: Eric Farrar

Status: The Texas Supreme Court denied the motion for rehearing.

The questions presented to the Texas Supreme Court in this case are: (1) Whether multiple, unrelated documents and ordinances drafted and enacted at different times and for different purposes can be pieced together to create a written binding contract; (2) whether the city intended to create a contract by enacting or adopting these multiple documents alleged to be a contract; and (3) whether multiple documents and ordinances alleged to be a written contract contain the essential terms necessary to form a contract.

In this case, former police officers and firefighters brought suit against the city of Dallas, claiming it breached its contract with them regarding pay increases they claim were due to them. In the 1970s, the city enacted an ordinance regarding a salary increase for police officers and firefighters. It was ambiguous about whether the ordinance was intended to be a one-time salary adjustment or to apply to all future salary increases. The employees argued that the ordinance became a non-negotiable written term in each of their contracts with the city and that the city breached its contract to them by failing to provide regular salary increases in accordance with the terms of the ordinance.

The Court of Appeals for the Fifth District of Texas at Dallas found that a contract existed between the city and these employees. In order to find a contract, the court combined the ordinance in question, other ordinances, various referenda, the city charter, and city code, all of which were drafted and adopted at different times for different purposes. The court held that a contract exists if it is in writing, states the essential terms of the agreement, provides for goods or services to the local government entity and is properly executed on behalf of the local government entity. The Court of Appeals found all these factors existed here. The Supreme Court of Texas denied the city’s request to hear the case on appeal. The city of Dallas is submitting a motion to the Texas Supreme Court for rehearing and IMLA will submit an amicus brief in support of that motion.


Filed January 12, 2015 (Illinois Supreme Court)

Heaton v. Quinn
No. 118585
Pro Bono Author: Timothy Bishop

This case concerns the Illinois legislature’s effort to reform the State’s public pension obligations. The Illinois Constitution contains a pension protection clause, providing that “any pension or retirement system of the State…shall not be diminished or impaired.” As a result of the State’s dire financial situation, the legislature made modest reductions to the State’s public employee pension obligations. The statute making those changes was struck down by the lower court and that decision was appealed to the Illinois Supreme Court. The issue before the Illinois Supreme Court is whether the statute making modifying the pension protection clause is constitutional. The Illinois Supreme Court held that it was not constitutional given the state constitution’s pension protection clause.


Filed November 28, 2014 (State of New York Court of Appeals)
City of Buffalo v. Margerum
No. CA 12-01540
Pro Bono Author: Prathima Reddy
Held: New York’s State Human Rights Statute parallels Title VII and the Supreme Court’s holding in Ricci v. Destefano applies to municipal employer’s voluntary compliance efforts.

This case is an important test case for municipalities because it represents the first decision that has directly applied “strong basis in evidence” standard for disparate impacts, established in Ricci v. Destefano, to a municipal employer’s voluntary efforts to comply with the requirements of Title VII.

Many years ago, Buffalo was sued by the Department of Justice regarding its minority hiring practices in its police and fire departments. Buffalo lost, and an injunction was issued prohibiting the City from discriminating against minority and female applicants and workers. The order also required the City to set certain diversity goals for each minority and for females to balance its public safety workforce.

Around the turn of the century, African American firefighters filed a class action suit asserting that tests the City used unfairly affected their ability for promotion in a discriminatory manner. As part of the litigation, the City hired a consultant who concluded that the City’s tests were not race neutral. Faced with the impeding litigation, and fearful that they would be subject to disparate impact liability, the City took certain race conscious actions to correct their previously misguided personnel selection procedures and to rectify what they believed was discrimination against minority firefighters.

One such action was to disregard the results of certain promotional examinations by terminating the promotion list. In doing so, the City relied on Ricci v. Destefano, a 2009 Supreme Court case, in which IMLA also participated as amicus. Ricci permits an employer to disregard the results of a personnel selection procedure that favors one racial group over another, so long as there is a “strong basis in evidence” to conclude that a disparate impact exists. In turn, a group of white firefighters sued asserting that the termination of the test affected an equal protection violation and the lower court and the intermediate appellate court agreed.


Filed November 24, 2014 (DC Circuit Court of Appeals)
Heller v. District of Columbia
No. 14-7071
Pro Bono Author: Larry Rosenfeld

The District of Columbia has, over the last several decades, passed some of the most restrictive gun laws in the nation. In 2008, the Supreme Court struck down the District’s handgun in District of Columbia v. Heller (Heller I), 554 U.S. 570 (2008), concluding that the Second Amendment protected handgun possession for self-defense in the home. After Heller I, the District responded by enacting a law that banned assault weapons and large-capacity magazines but merely imposed registration requirements for handguns and long guns.

This appeal involves the Second Amendment challenges that remained after the D.C. Circuit, in Heller II, reversed the dismissal of several challenges to the District’s gun registration requirements. On remand, the District of Columbia developed the record through four expert witnesses, and the plaintiffs presented one. The district court carefully analyzed the nature of proof necessary for the District to meet its burden under intermediate scrutiny and explained that the District need not prove “definitively that the challenged regulations will actually further its important interests”; that deference is owed its predictions about the effect of the gun regulations; and that the District need only show that its restrictions “reflect reasonable inferences based on substantial evidence.” The court also explained that the District could rely on more than empirical evidence, including the training and experience of law enforcement, anecdotes, history, consensus, and simple common sense. The court then reviewed, and upheld, challenges to various aspects of the gun registration, including long-gun registration, firearms safety training, and one-gun-a-month limit.

The issue on appeal is whether the challenged firearm registration requirements in D.C. Code § 7-2501.01 et seq. violate the Second Amendment to the United States Constitution.


Filed August 29, 2014 (Sixth Circuit Court of Appeals)
Tree of Life v. City of Upper Arlington
No. 14-3469
Pro Bono Author: Phillip Hartman

Tree of Life, a church, wanted to buy property to build a school in an area of the city zoned for commercial use. The commercial zone does not allow schools (public or private / secular or non-secular) as the city’s plan is to maximize commercial revenues within this zone. Tree of Life, after having been cautioned that the use of the building for a school was not permitted bought a large building with the intent to convert the building to a school. Consistent with its zoning ordinance, the city refused to allow Tree of Life to build a school in the commercial zone.

Tree of Life brought suit in district court claiming the city’s decision violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The city’s decision was upheld by the lower court, which opined that the comparator for RLUIPA analysis should be other schools, not any institutional use such as daycare facilities, and therefore, because the city would not allow either secular or non-secular schools in the zone, the city did not violate RLUIPA. Tree of Life appealed to the Sixth Circuit, arguing that the district court failed to apply the proper standard under RLUIPA when it held that the only valid comparator to a religious school was a secular school.


Filed June 14, 2013 (Fourth Circuit)
Sandlands v. County of Horry
No. 13-1134
Pro Bono Author: Scott Duboff
Held: On December 3, 2013 the 4th Circuit upheld a lower court decision finding that Horry County’s flow control ordinance did not violate the Commerce Clause.

This was a solid waste flow control case in the vein of United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007). In United Haulers, the Supreme Court held that flow control ordinances, which benefit a public entity and do not favor local private interests over other private interests, do not offend the Commerce Clause.

In 2009, Horry County passed an ordinance that required all municipal solid waste (MSW) and construction and demolition (C&D) debris to be processed within the county and disposed of in a landfill owned and operated by a public corporation created by the County. Private haulers could collect the waste, but it had to be processed inside the county and recyclable materials removed before the MSW and C&D were disposed of, exclusively, in the County landfill. Private haulers who wished to compete were required to set up a transfer station where the recyclables could be separated inside the County. Plaintiffs, who operated a landfill just outside the county, objected to the requirement to process the waste inside Horry County and claimed that the Horry County solid waste stream was contemplated when the plaintiffs’ landfill was permitted by the State.

Plaintiffs challenged the ordinance on a number of grounds, both State and Federal, including violations of the dormant commerce clause, equal protection, unlawful delegation of police powers, contracts clause violations, inverse condemnation, substantive due process, denial of vested rights, preemption, interference with contractual relations and South Carolina UTPA violations. The district court certified the question of whether the State’s Solid Waste Management Act preempted the County’s ordinance, including the power to designate where the waste was to be processed and disposed of. The district court also held in favor of the County on the federal issues and this appeal followed.


Filed April 24, 2013 (Petition for rehearing en banc - 7th Circuit)
Hall v. City of Chicago
No. 11-3279
Pro Bono Author: Patrick Rocks
Status: Petition Denied

Anna Hall was a female plumber working for the City of Chicago in a department in which all other nonsupport staff employees were male. In her complaint, she claims that her supervisor created a hostile work environment under Title VII. Hall argues that because she was female, her supervisor assigned her menial work, prohibited her coworkers from interacting with her, and subjected her to verbal violence. The district court granted summary judgment after concluding her supervisor’s conduct was not hostile particularly in comparison to other employees’ responsibilities. It also concluded that Hall failed to produce evidence that Johnson’s conduct was because of her sex. The Seventh Circuit reversed the district court’s findings, concluding that a jury could infer her supervisor’s deliberate isolation of her was sufficiently pervasive to constitute a hostile work environment and that her gender played a part in his actions.


Filed February 7, 2013 (Court of Criminal Appeals of Texas)
Texas v. Cooper
No. PD-001-13
Pro Bono Author: Heather Mahurin
Held: The Texas Court of Criminal Appeals held that the appellee was entitled to notice of violations of a municipal code before his subsequent violations of the code could result in convictions.

Jay Cooper was charged and convicted with failing to maintain his home in good repair, in violation of the City of Plano’s Code of Ordinances. These convictions were appealed and reversed on appeal for failure to state a cognizable offense. The Fifth District Court of Appeals held that the City’s code does not create a separate and distinct offense for the violation of a substantive provision of the International Property Maintenance Code (“IPMC”). The Court reasoned that the City failed to properly charge Mr. Cooper with the IPMC violation, and that the City’s code does not constitute a separate and distinct offense for the violation of a substantive provision of the IPMC. In doing so the court ignored the intent of the Plano City Council. As a result, municipalities in Texas faced uncertainty when prosecuting code violations and enforcing model codes.


Filed August 23, 2011 (Texas Supreme Court)
Dallas v. Stewart READ BRIEF HERE
Pro Bono Author: Marianne Landers Banks

This is an interesting case. Steward bought a house and abandoned it in 1991. For over 10 years, the house was a common stop for code enforcement officials, for vagrants, and for complaints by neighbors. One neighbor even testified that an old tree had fallen from Stewart's lot onto her causing $8,000 worth of damage and threatened to do $30,000 more. In September 2001, ten years after Stewart abandoned the house, the Dallas Urban Rehabilitation Standards Board, a thirty member administrative body, met to decide whether Stewart's house was a nuisance that should be abated. Eventually, the Board voted in favor of demolishing the home. Shortly after, a code inspector when to Stewart's home and found that she had not repaired the property. The City obtained a demolition warrant. Stewart appealed the Board's decision to district court, but the district court upheld the Board's decision. The property was demolished. Shortly after, Stewart brought an action, in part, including a due process and unconstitutional takings claim. The court ruled in favor of Stewart, saying that despite all the notice and opportunity to repair her home, she was entitled to a de novo review of her claims in court, rather than a determination by the administrative board and a affirmance under a substantial evidence standard by the reviewing court.