Posted 28 Aug 2017 in Case Notes, Commentary, Monday Morning Review
In an unusual move, the Supreme Court accepted a case during its summer recess.  Like most of its docket, this case will affect states and local governments. The Prison Litigation Reform Act (PLRA) states that when an inmate recovers money damages in a confinement conditions case “a portion of the judgment (not to exceed 25 percent)” shall be applied to his or her attorney’s fees award. The question the Supreme Court will decide in Murphy v. Smith is whether “not to exceed 25 percent” means up to 25 percent or exactly 25 percent. A jury awarded inmate Charles Murphy about $300,000 in damages relating to an officer crushing his eye socket and leaving him unconscious in a cell without checking his condition. The trial judge awarded Murphy’s attorney about $100,000 in fees and allocated 10 percent of Murphy’s damages award to attorney’s fees (about $30,000).

Posted 21 Aug 2017 in Case Notes, Commentary, IMLA Briefs, Monday Morning Review
Federalism cases raise legal issues big and small, pedestrian and esoteric. The very simple question in Artis v. District of Columbia is what does it mean for a statute of limitations to “toll” under 28 U.S.C 1367(d)? The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief agreeing with the District of Columbia’s interpretation of “toll.” A year after the fact, Stephanie Artis sued the District of Columbia in federal court bringing a number of federal and state law claims related to her termination as a code inspector. It took the federal district court over two and a half years to rule on her claims. It dismissed her sole federal claim as “facially deficient” and no longer had jurisdiction to decide the state law claims. 28 U.S.C 1367(d) states that statutes of limitations for state law claims pending in federal court shall be “tolled” for a period of 30 days after they are dismissed (unless state law provides a longer tolling period). While Artis was waiting for the federal district court to rule, the three-year statutes of limitations on all her state law claims passed. She waited 59 days to re-file her claims in state court after the federal district court dismissed her case. Was her claim timely? The District of Columbia Court of Appeals held no.  

Posted 17 Aug 2017 in Case Notes, Commentary, IMLA Briefs

Maintaining accurate voter rolls means walking a fine line.

 In Husted v. A. Philip Randolph Institute the Supreme Court will decide whether federal law allows states and local governments to remove people from the voter rolls if the state or local government sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years.  While Ohio is being sued in this case, twelve other states use a similar process. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Ohio.  The National Voter Registration Act (NVRA) says that roll maintenance procedures “shall not result in” people being removed from the polls for failure to vote. The Help America Vote Act modified the NVRA to say that states may remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles.

Posted 27 Jun 2017 in Case Notes, Commentary, IMLA Briefs

Good news for local governments with "merger" ordinances: you can keep them on the books.

　It has been a number of years since states and local governments have won a property rights case. But in Murr v. Wisconsin the Supreme Court concluded 5-3 that no taking occurred where state law and local ordinances "merged" nonconforming, adjacent lots under common ownership, meaning the property owners could not sell one of the lots by itself. The State and Local Legal Center (SLLC), filed an amicus brief, which the Court cited two times, arguing that these very common provisions are constitutional.　

　The Murrs owned contiguous lots E and F, which together are .98 acres. Lot F contained a cabin and lot E was undeveloped. State law and a St. Croix County merger ordinance prohibit the individual development or sale of adjacent lots under common ownership that are less than one acre total. A grandfather clause allows for the sale and development of separately owned substandard lots purchased before the statute and ordinance went into effect.

     The Murrs sought and were denied a variance to sell Lot E to finance moving the cabin on Lot F. They claimed the ordinance resulted in an unconstitutional uncompensated taking.

Posted 26 Jun 2017 in Case Notes, Commentary
On its last opinion day of the term, the Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban. In the meantime, to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the United States, it may go into effect until the Supreme Court rules on the merits of this case. The president’s first executive order prevented people from seven predominantly Muslim countries from entering the United States for 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017. The Ninth Circuit temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders, and refugees. The president’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers, and contains the same provisions regarding refugees as the original travel ban. The Fourth Circuit concluded the revised travel ban likely violates the Establishment Clause, noting that its “text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination.” It temporarily prevented the portion of the executive order regarding admission to the United States for 90 days from going into effect. The Ninth Circuit concluded that the revised travel ban likely exceeds the power granted to the President by Congress in the Immigration and Nationality Act. It temporarily prevented all of the provisions mentioned above from going into effect, including those affecting refugees.

Posted 23 Jun 2017 in Case Notes
Local governments don’t particularly care that trademarks aren’t government speech. But they do care about the breadth of the government speech doctrine because government speech is not protected by the First Amendment (meaning governments can say what they want and exclude messages they disagree with). In Matal v. Tam Justice Alito, writing for the majority, noted that Walker v. Texas (2005) “likely marks the outer bounds of the government-speech doctrine.” In Walker the Court held that messages on specialty license plates are government speech. Section 2(a) of the Lanham Act bars the Patent and Trademark Office (PTO) from registering marks that disparage persons and institutions. Simon Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. The PTO refused to register the band name concluding a “substantial composite of people” would find it offensive. Tam sued the PTO arguing that Section 2(a) violates the First Amendment Free Speech Clause. Among other arguments, the Supreme Court rejected the federal government’s claim that trademarks are government speech or a form of government subsidy. In rejecting the argument that trademarks are government speech, the Court noted that none of the factors present in Walker are present in this case. Specifically, license plates have long been used to convey state messages; are closely identified with the state as they are manufactured, owned, and generally designed by the state; and Texas directly controlled the messages conveyed on specialty plates.

Posted 20 Jun 2017 in Case Notes, IMLA Briefs
In Packingham v. North Carolina the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result. Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed. This case may not see particularly relevant to local governments. But, if a statute (or ordinance) limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles. The Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny. So, practically speaking, the Supreme Court didn’t expand or clarify the definition of content-based in Packingham.  

Posted 19 Jun 2017 in Case Notes, Commentary, Monday Morning Review
In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional. While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional. In 2004, Justice Anthony M. Kennedy – who may be the deciding vote in Whitford – wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional. In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans. The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process. Drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers, the standard is based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap.

Posted 02 Jun 2017 in Case Notes, Commentary
The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local governments supported the challengers.  The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.  The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers. 

Posted 30 May 2017 in Case Notes, IMLA Briefs
No matter the legal issue, excessive forces cases are difficult for state and local governments to win because they often involve injury or death (in this case of a totally innocent person). To win one unanimously likely says something about the problematic nature of the legal theory. In County of Los Angeles v. Mendez the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The State and Local Legal Center (SLLC) filed an amicus brief asking the Supreme Court to reject the Ninth Circuit’s provocation rule. Police officers entered the shack Mendez was living in without a warrant and unannounced. Mendez thought the officers were the property owner and picked up the BB gun he used to shoot rats so he could stand up. When the officers saw the gun, they shot him resulting in his leg being amputated below the knee. The Ninth Circuit concluded that the use of force in this case was reasonable. But it concluded the officers were liable per the provocation rule--the officers brought about the shooting by entering the shack without a warrant. (The Ninth Circuit granted the officers qualified immunity for failing to knock-and-announce themselves.) The Ninth Circuit also concluded that provocation rule aside, the officers were liable for causing the shooting because it was “reasonably foreseeable” that the officers would encounter an armed homeowner when they “barged into the shack unannounced.”