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.

Posted 30 Jan 2015 in Commentary
To the casual Supreme Court watcher Holt v. Hobbs will probably be known and remembered more for John Oliver’s rendition of the oral argument featuring dogs posed as Supreme Court Justices rather than what the Court held.  But, for Gregory Holt, and other inmates who have been not been allowed to grow half inch beards, it is the holding they will remember. The Supreme Court held unanimously that an inmate’s rights under the Religious Land Use and Institutionalized Persons Rights Act (RLUIPA) were violated when he was not allowed to grow a half inch beard in accordance with his religious beliefs.  This case will affect correctional institutions with no-beard policies and may provide lower court’s guidance in evaluating RLUIPA claims in the corrections and land use context.  

Posted 28 Jan 2015 in Commentary, IMLA Briefs
Commentary by Bill Brinton, Rogers Towers, Jacksonville, Florida During the oral argument in Reed v. Town of Gilbert, Arizona, Reed’s counsel, David Cortman of Lawrenceville, Georgia, recommended that temporary signs relating to a one-time event, such as an election or anything else that occurs on a particular date, be taken down within the same time period after that event. He represented to the Court that “in fact the Washington, D.C., municipal regulations have that exact code . . . it’s one we would recommend to the Court. . . . I believe it’s 13605.” According to Mr. Cortman, “what it says is all temporary signs should be treated the same, period. . . . Every temporary sign can be up for 180 days.” See Oral Argument Transcript at pages 16-17. As a practitioner who defends and drafts sign regulations, I found a number of the propositions made by the petitioners to be impractical and contrary to common sense. I was curious about the D.C. municipal regulation 13605, and when I looked for the regulation I could not find it. There was a good reason. It is not a law at this time, nor has it ever been the law. There is simply a draft proposal from 2012 for a new Title 13, Chapter 6, that would provide regulation for temporary signs, but the same is still under review by the District, and has been undergoing further changes since 2012 based upon public input.

Posted 26 Jan 2015 in Tips and Tactics

Occasionally an attorney will propose that the parties stipulate to the meaning of a relevant statute.  Such stipulations have no legal force and will be disregarded by the court.  Numerous cases so hold across the United States:   “Parties to a dispute cannot stipulate to the law and assume that the court will follow blindly an incorrect interpretation of the law, especially in an unsettled and everchanging area.” Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984)   “Parties...

Posted 26 Jan 2015 in Case Notes, Commentary

Per the adoption of the Americans with Disabilities Act (ADA), accommodating persons with disabilities is the norm.  Twenty-five years after the Act’s passage, the Supreme Court will decide whether it applies to police officers arresting a mentally ill suspect one who is armed and violent. In City & County of San Francisco v. Sheehan the Supreme Court will decide whether, pursuant to the Americans with Disabilities Act (ADA), police must accommodate a suspect’s mental illness when arresting him or her.  The...

Posted 20 Jan 2015 in Case Notes, Commentary

On Friday the Supreme Court elevated this term from mostly meat and potatoes to historic by agreeing to hear four same-sex marriage cases.  The Court will decide whether it is constitutional for states to prohibit same-sex marriage and whether states may refuse to recognize same-sex marriages lawfully performed out of state.   While the Court refused to hear a number of cases presenting the same issues earlier in the term, these grants came as little surprise.  Between then and now the Sixth...

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.”