Posted 19 Jun 2015 in Case Notes, Commentary
Another update on the concealed-weapons permit case, Peruta v. County of San Diego.  The Ninth Circuit held en banc rehearing this week.  Panel consisted of Chief Judge Thomas, and Judges Pregerson, Silverman, Graber, McKeown, Fletcher, Paez, Callahan, Bea, Smith, and Owens.  Chief Judge Thomas dissented from the original three-judge panel opinion, authoried by Judge O'Scannlain and joined by Judge Callahan.

Posted 19 Jun 2015 in Case Notes, Commentary
In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.

Posted 18 Jun 2015 in Case Notes, Commentary, IMLA Briefs
In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide. Gilbert’s Sign Code treats temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest. While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”

Posted 16 Jun 2015 in Case Notes, Commentary
Sila Luis was indicted on charges related to $45 million in Medicare fraud. Unsurprisingly, 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. She wanted to use them to hire an attorney. The question in Luis v. United States is whether not allowing a criminal defendant to use assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel. This case is relevant to state and local government for a few reasons. First, while the asset forfeiture in this case likely went to reimburse the federal government for the Medicaid fraud, generally, law enforcement involved receive asset forfeitures. Second, some state asset forfeiture laws, like the federal statute in this case, allow untainted assets to be substituted. Third, in some instances state and local governments, like the federal government in this case, are the victim of a fraud and seek to recoup as much of their losses as possible.     

Posted 11 Jun 2015 in Case Notes, Commentary
Tyson Foods v. Bouaphakeo presents a classic legal dilemma:  two lines of cases, one older and one newer, neither exactly on point.  Which will the Court pick or will it craft a new test? More pragmatically, local governments will be interested in this case because it involves the Fair Labor Standards Act (FLSA). Given the difficulties of complying with this complex law, no employer is immune from the possibility of FLSA litigation. One of two questions the Supreme Court will decide in Tyson Foods v. Bouaphakeo is whether a representative sample may be used calculate liability and damages for an entire class of workers. The other question is whether a class may include hundreds of members who weren’t affected.

Posted 10 Jun 2015 in Case Notes, Commentary
While the Supreme Court’s recent grant of certiorari in Evenwel v. Abbott asks one of the biggest questions about redistricting (who exactly is counted to determine one-person-one-vote), the question the Supreme Court will decide in Shapiro v. Mack is much more modest. Federal law (the Three-Judge Act) requires three-judge panels to decide constitutional challenges to congressional and legislative redistricting. But the single judge to whom the request for a three-judge panel is made may determine that three judges are not required to decide the case.  

Posted 03 Jun 2015 in Case Notes, Commentary
We didn’t learn much in Taylor v. Barkes. But we could have. Prison officials asked the Supreme Court to resolve a circuit split over whether supervisors can be liable for constitutional violations caused by their failure to supervise. Instead of requesting and holding oral argument before deciding the case, the Court summarily reversed the lower court in a per curiam (unauthored) opinion.  The Court “expess[ed] no view” on the vitality of supervisory liability instead concluding no clearly established constitutional right was implicated in this case. The Court granted two prison officials qualified immunity related to an inmate’s suicide reasoning that no precedent at the time of the suicide established that an incarcerated person had a right to proper implementation of adequate suicide prevention protocols. So prison officials could not be liable for failing to supervise the contractor providing suicide screening.

Posted 01 Jun 2015 in Case Notes, Commentary
The Supreme Court’s final employment case of the term is a loss for all employers—not just clothing retailers that impose their fashion sense on their employees. As Justice Thomas points out in his dissenting opinion, rather remarkably, it leaves open the possibility that an employer can be liable for intentional discrimination for failing to accommodate a practice it did not know or even suspect was religious. In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which IMLA attorneys wrote, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation.

Posted 29 May 2015 in Case Notes
It has been a while since the Supreme Court has taken a case that could impact city prosecutors. But in Foster v. Humphries the Supreme Court will decide such a case.  In Foster, the Court will consider whether potential black jurors were purposely excluded in violation of Batson v. Kentucky. In 1987 Timothy Tyrone Foster, who is black, was sentenced to death for murdering an elderly white woman. The jury was all-white; the prosecutor peremptorily struck all four prospective black jurors.  Prosecutors may strike a number of jurors for any unstated reason except because of race and sex, the Supreme Court has held.

Posted 28 May 2015 in Case Notes, Commentary
The U.S. Constitution Equal Protection Clause’s “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The Supreme Court will decide these issues in Evenwel v. Abbott. While this case involves a state legislature redistricting it is equally applicable to a local government drawing boundaries for a local election. While local governments may prefer to decide for themselves (rather than have the Supreme Court tell them) what population metric is appropriate, they may disagree about the better metric.