Posted 15 Jan 2015 in Case Notes, Commentary

The City of Roswell lost its case before the Supreme Court on what some might describe as a mere technicality--but overall local governments won.   In T-Mobile South v. City of Roswell the Supreme Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.  The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially...

Posted 24 Dec 2014 in IMLA Briefs
The State and Local Legal Center’s (SLLC) Supreme Court amicus brief in Los Angeles v. Patel, which IMLA joined, is all that you expect from an amicus brief…and more.  It makes not one but all the usual amicus arguments:  don’t rule that state and local governments can be sued for yet another thing, if you rule against the city in this case many other cities and states will be affected, and a ruling against the city will likely impact many similar but unrelated statutes and ordinance. hotel    A Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants.  Motel operators claim this ordinance is facially invalid under the Fourth Amendment.  The Ninth Circuit agreed, because the ordinance fails to expressly provide for pre-compliance judicial review before police can inspect the registry.    The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Los Angeles v. Patel arguing that Fourth Amendment facial challenges should be disfavored and that if the ordinance in this case is unconstitutional similar hotel registry ordinances across the country—and laws and ordinances requiring record keeping and inspection of other businesses—may be unconstitutional.  A facial challenge to the ordinance in this case requires a court to determine whether all searches that might be conducted pursuant to the ordinance are unconstitutional (as opposed to an as-applied challenge where the court would decide whether a particular search under the ordinance violates the Fourth Amendment).  The SLLC argues that Fourth Amendment facial challenges don’t make sense because whether a search violates the Fourth Amendment depends on whether it is reasonable, which is necessarily a fact-based determination.  Under some set of facts almost any search would be reasonable.  For example, depending on the facts, warrantless searches of hotel registries could be reasonable under the “community care-taking exception,” because the registry is “in plain view,” or because of “exigent circumstances.”

Posted 21 Dec 2014 in Monday Morning Review

Here are last week's published decisions involving local governments: Fourth Circuit Hudson v. Pittsylvania County, No. 13-2160 (Dec. 17, 2014): In appeal of district court order finding that County prayers violated Establishment Clause, the court found that County's  appeal was untimely. Fifth Circuit Bell v. Itawamba County Sch. Bd., No. 12-60264 (Dec. 12, 2014): The court ruled that school board violated student's freedom of speech by disciplining him for a song that he wrote off campus, that he posted to the Internet from his home computer, and that...

Posted 21 Dec 2014 in Case Notes, Commentary
In Heien v. North Carolina the Supreme Court held that a reasonable mistake of law can provide reasonable suspicion to uphold a traffic stop under the Fourth Amendment. A police officer pulled over a car that had only one working brake light because he believed that North Carolina law required both brake lights to work.  The North Carolina Court of Appeals, interpreting a statute over a half a century old, concluded only one working brake light is required. highway stop When the vehicle’s occupants behaved suspiciously, the officer asked to search the car.  They consented, and the officer found cocaine.  The owner of the car argued that the stop violated the Fourth Amendment because driving with one working brake light doesn’t violate North Carolina law. The Supreme Court has long held that reasonable mistakes of fact do not undermine Fourth Amendment searches and seizures.  Justice Roberts reasoned in this 8-1 decision:  “Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.”

Posted 15 Dec 2014 in Case Notes, Commentary, IMLA Briefs
In a unanimous opinion in Integrity Staffing Solutions v. Busk, the Supreme Court held that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend waiting to undergo and undergoing security screenings.  Government employees who work in courthouses, correctional institutions, and warehouses routinely go through security screening at the beginning and/or end of the workday.   SCT stairs Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders.  They claimed that they should have been paid for the time they spent waiting and going through security screenings to prevent theft at the end of each shift. Under the FLSA employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity.  According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  The Court concluded that security screenings were not intrinsic to retrieving and packing products and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work.

Posted 15 Dec 2014 in Case Notes
In Walker v. Texas Division, Sons of Confederate Veterans the Texas Department of Motor Vehicles Board (Board) rejected the Texas Division of the Sons of Confederate Veterans’ (Texas SCV) application for a specialty license plate featuring images of the Confederate Flag.  The Supreme Court will decide whether this violates the First Amendment. 5554035521_f6b59ccafa_n This case may have implications beyond the specialty license plate context.  Lower courts have struggled to determine whether government websites, advertisements on city buses, memorial bricks and tiles at public schools, etc. are government speech or private speech. Texas allows nonprofits to propose license plate designs for state approval.  Texas SCV applied for a specialty plate featuring its logo, a Confederate flag framed on all four sides with the words “Sons of Confederate Veterans 1896,” and a faint Confederate flag in the background.  The Board voted unanimously against the plate because it received numerous public comments objecting to it. The Fifth Circuit ruled in favor of Texas SCV. 

Posted 14 Dec 2014 in Monday Morning Review
Catching up on recent published decisions involving local governments:court collumn First Circuit
  • S. Kingstown Sch. Cmte v. Joanna S., No. 14-1177 (Dec. 9, 2014): The court ruled in Individuals with Disabilities in Education Act ("IDEA") case that settlement agreement relieved school committee of obligation to perform or fund evaluations, and remanded to determine whether Joanna S. is entitled to attorney's fees.
Second Circuit Fourth Circuit Fifth Circuit

Posted 03 Dec 2014 in Case Notes, IMLA Briefs
The Fourth Amendment applies to arrests, no question about it.  What about the Americans with Disabilities Act (ADA)?  Specifically, do individuals with mental illnesses have to be accommodated under the ADA when being arrested?  The Ninth Circuit said yes and the Supreme Court has agreed to review its decision in City & County of San Francisco v. Sheehan.Gavel When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated.  When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her. Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated. Sheehan argued that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room.  Her proposed accommodations included:  respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests.

Posted 25 Nov 2014 in Case Notes, Commentary, IMLA Briefs
The Supreme Court’s decision in Reed v. Town of Gilbert, Arizona could upset sign codes nationally.5554035521_f6b59ccafa_n  Most sign codes, like Gilbert’s, include different categories of temporary signs.  It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs.  In this case the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs.  The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.  IMLA joined the State and Local Legal Center’s (SLLC) amicus brief asking the Court not to go that far. Gilbert’s Sign Code includes temporary directional signs, political signs, and ideological signs.  After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert.  The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.

Posted 24 Nov 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn First Circuit Third Circuit Sixth Circuit