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Posted 09 May 2016 in Commentary
Former Virginia Governor Bob McDonnell has put forward his best case that a lower court has adopted an overly broad definition of “official acts” in federal bribery statutes. Will the Supreme Court agree? 

Posted 27 Apr 2016 in Case Notes, IMLA Briefs

Bad facts make bad law. That said, it is hard to imagine a case sympathetic to a public employer where it discharged or dismissed an employee based on its incorrect belief that the employee engaged in constitutionally protected speech. Either way, the case the Supreme Court heard, and ruled against the public employer in, involved a son helping his bedridden mother.

In Heffernan v. City of Paterson, New Jersey the Supreme Court held 6-2 that a public employer violates the First Amendment when it acts on a mistaken belief that an employee engaged in First Amendment protected political activity. The State and Local Legal Center (SLLC) filed an amicus brief taking the opposite position.　

Posted 21 Apr 2016 in Case Notes, Commentary
In a (barely) 11 page opinion the Supreme Court did what three lower court judges could not do in three separate opinions: agree  In Harris v. Arizona Independent Redistricting Commission the Supreme Court confirms that state and local governments don’t have to apportion legislative districts perfectly, but they do need a good reason for failing to doing so. But we knew that before.  The Court held unanimously that Arizona’s redistricting plan, which had a total population deviation among districts of 8.8 percent, wasn’t unconstitutional. Those attacking the plan failed to show it is more probable than not that the deviation reflects illegitimate reapportionment considerations.

Posted 18 Apr 2016 in Case Notes, Commentary
It was a different crowd today at the Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish. United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government.  

Posted 13 Apr 2016 in Case Notes, Commentary
There is outright theft and then there is getting paid for doing the job but not following all the rules. The former may be the subject of a False Claims Act claim but what about the latter?  The Supreme Court will hear argument on that question next week.  The False Claims Act (FCA) allows private individuals to sue on behalf of the United States to recover money that has been defrauded from the federal government. While the Supreme Court has yet to rule whether states and local governments can bring FCA claims, local governments, but not state governments, can be sued for making false claims against the federal government.  

Posted 07 Apr 2016 in Case Notes, Roundup
Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states.

Posted 06 Apr 2016 in Case Notes, IMLA Briefs
In a 6-2 decision the Supreme Court ruled that the Sixth Amendment right to counsel includes allowing a criminal defendant to use untainted substitute assets to hire an attorney, rather than freezing them for forfeiture to the government after conviction.  The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result in Luis v. United States. State and local governments—police departments in particular—receive criminal asset forfeitures. Any many state forfeiture statutes allow freezing of substitute assets.

Posted 04 Apr 2016 in Case Notes
In what has been described as the most important “one-person, one-vote” case since the Supreme Court adopted the principle over 50 years ago, the Court held that states may apportion state legislative districts based on total population. Local governments may do the same.   The Court’s opinion in Evenwel v. Abbott is unanimous. All 50 states currently use total population to design state legislative districts; only seven adjust the census numbers “in any meaningful way.”