Posted 27 Mar 2015 in Case Notes

Quick update for those of you following the hotly contested Second Amendment case Peruta v. County of San Diego.  Yesterday, the Ninth Circuit agreed to an en banc rehearing.  The Court will take up the issue of whether San Diego County’s “good cause” permitting requirement, governing concealed weapons permits, impermissibly infringes on the Second Amendment right to bear arms.  The California Attorney General and other groups brought petitions for rehearing after unsuccessfully attempting to intervene in the case last year when the San...

Posted 26 Mar 2015 in Case Notes, Commentary
In the only SCOTUS case of the term where the issue of race is front and center (other than high profile Fair Housing Act case) the Court sided with minority voters. Unsurprisingly, Justice Kennedy joined the majority opinion. In Alabama Legislative Black Caucus v. Alabama the Supreme Court held 5-4 that when determining whether unconstitutional racial gerrymandering occurred—if race was a “predominant motivating factor” in creating districts—one-person-one-vote should be a background factor, not a factor balanced against the use of race.  And Section 5 of the Voting Rights Act (VRA) does not require a covered jurisdiction to maintain a particular percent of minority voters in minority-majority districts.  The Court sent this case back to the lower court to reconsider in light of its opinion.  While this case involves state legislative redistricting, the legal standards at issue apply to redistricting at the local level as well.  

Posted 17 Mar 2015 in Case Notes, Commentary, IMLA Briefs
In 2006 the Department of Labor (DOL) stated in an opinion letter that mortgage loan officers were eligible for overtime but then changed its mind in 2010 in an “Administrator’s Interpretation.” In Perez v. Mortgage Bankers Association the Supreme Court held unanimously that federal agencies do not have to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before changing an interpretive rule, like the 2006 opinion letter in this case.  The Court overturned a nearly 20 year-old precedent from the D.C. Circuit, Paralyzed Veterans of America v. D.C. Arena, which the State and Local Legal Center (SLLC) argued in an amicus brief that the Court should affirm.  Paralyzed Veterans held that an agency must use APA notice-and-comment when significantly altering an interpretive rule that interprets a legislative rule. 

Posted 13 Mar 2015 in Case Notes, Commentary, IMLA Briefs
In Alabama Department of Revenue v. CSX Transportation the Supreme Court held 7-2 that railroads can be compared to their competitors when determining whether a tax is discriminatory in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act).  Different taxes paid by railroads and their competitors must be compared with determining whether a tax railroads pay is discriminatory.  The State and Local Legal Center (SLLC) filed an amicus brief in this case disagreeing with the Court’s first holding and agreeing with its second holding. The 4-R Act prohibits state and local governments from imposing taxes that discriminate against rail carriers (railroads).  Railroads in Alabama pay a four percent sales tax on diesel fuel as do other commercial and industrial purchasers.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  Water carriers pay no sales or excise tax on diesel fuel. 

Posted 10 Mar 2015 in Commentary, IMLA Briefs
There is no way to know for sure why Justice Kennedy wrote a concurring opinion in Direct Marketing Association v. Brohl stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”  But even if you don’t read the State and Local Legal Center (SLLC) amicus brief’s criticism of Quill and merely scan its table of authorities, you will notice that two of the three non-case related citations in Justice Kennedy’s opinion come from the SLLC’s brief.

Posted 04 Mar 2015 in Case Notes, Commentary
For Justice Kennedy it was his questions, for Chief Justice Roberts it was his silence… Today the Supreme Court heard oral argument in King v. Burwell, where it will decide whether federal health insurance exchanges, operating in 34 states, can offer subsidies to middle and low income purchasers of insurance under the Affordable Care Act (ACA). Simply put, the Court must decide whether it agrees with the Internal Revenue Service (IRS) that the following statutory language, “established by the State,” can include federal exchanges too. All eyes and ears were on Justice Kennedy and Chief Justice Roberts during the argument.  Justice Kennedy is the Court’s “swing” Justice, and Chief Justice Roberts crucially concluded in the first Supreme Court challenge to the ACA that the individual mandate is a constitutional “tax.” 

Posted 23 Feb 2015 in Tips and Tactics
Don’t assume that an argument should be discarded because it is supported only an old case.  For example, plaintiffs relied on Stevens v. Los Angeles Dock & Terminal Co., 20 Cal.App.743 (2d Dist. 1912), and defendant  More-Gas first noted that Stevens is “’a 100 year old case that has never been cited by another California case.’” The court in McGuire v. More-Gas Investments, LLC, 220 Cal.App.4th 512, 526 (3d Dist. 2013), responded: That fact is of no significance. While it is true Stevens has never been cited by any published appellate decision in California, that does not undercut the validity of the reasoning in the case. Indeed, the principle applied in Stevens is well known in the common law, including here in California. An appellate court in New York that cited Stevens over 70 years ago succinctly articulated that principle as follows: As McGuire illustrates, age of a compelling case is not necessarily a matter of consequence.  What are some ways to show why the case is compelling when it has never been cited by another California court?

Posted 17 Feb 2015 in Commentary, Roundup
The Supreme Court’s 2014-2015 docket is now complete.  While the same-sex marriage and Affordable Care Act cases will receive the most attention, the docket is chalked full of cases significant to local government.  The State and Local Legal Center’s (SLLC) Midterm Review article summarizes all the cases accepted and already decided that will affect local government.  Expect decisions in all the cases by the end of June.  If you are interested in these cases and others register here for the SLLC's FREE Supreme Court Midterm Review webinar held on March 5. Here are some highlights: Reed v. Town of Gilbert, Arizona and Sheehan v. City & County of San Francisco are probably the most significant cases of the term for local government.  Depending on how the Court rules, both could impact every city and county in the United States.  The issue in Reed is whether sign codes may treat some categories of temporary signs more favorably than others.  If the Court holds they cannot, virtually all local governments will have to rewrite their sign codes.  In Sheehan the Court will decide whether the Americans with Disabilities Act applies to arresting a mentally ill suspect who is armed and violent.

Posted 09 Feb 2015 in Commentary, IMLA Briefs
HR 101: Don’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. No, no says the Equal Employment Opportunity (EEOC), if an employer thinks an employee may need a religious accommodation an employer must ask about religion. Is the EEOC’s (new) view correct? That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores. Who must ask about the need for a religious accommodation—the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus brief, which IMLA wrote, argues the employee/applicant should ask. Abercrombie & Fitch’s “Look Policy” requires sale-floor employees to wear clothing consistent with what Abercrombie sells in it stores and prohibits headwear. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. Her interviewer assumed but did not ask if she were Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.

Posted 05 Feb 2015 in Commentary, IMLA Briefs
Since the 1980s (and arguably the 1970s) the Supreme Court has been clear:  a pretrial detainees’ right to be free from excessive force derives from the Fourteenth Amendment’s Due Process Clause.  But what does that mean exactly?  The Supreme Court will lay out the specifics in Kingsley v. Hendrickson. State and local government officials can be sued for money damages for constitutional violations.  A legal standard more deferential to government officials means that successful pretrial detainee excessive force lawsuits will be less likely.  More significantly, different excessive force standards for pretrial detainees and sentenced inmates, who are often housed in the same facility, will be difficult for correctional officers to comply with.  After all, correctional officers must make split decisions regarding the use of force and may not know whether an incarcerated person is a pretrial detainee or has been convicted.