Posted 06 Oct 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn Second Circuit
  • Raspardo v. Carlone, No. 12-1686 (Oct. 6, 2014): In 1983 Title VII employment discrimination case brought by female police officers alleging hostile work environment and disparate treatment, the court affirmed denial of qualified immunity for one officer on hostile-work-environment claim, and reversed denial of qualified immunity for other officers.
  • Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (Oct. 2, 2014): In case in which  City denied request for facility to provide care for those recovering from alcohol and drug abuse because facility did not satisfy zoning requirements, the court affirmed district court's determination that it lacked subject-matter jurisdiction over ADA suit. Suit was not ripe because applicant had not sought variance or appealed the zoning decision.
  • Grogan v. Blooming Grove Volunteer Ambulance Corps, No. 13-656 (Sept. 29, 2014): The court affirmed dismissal of 1983 action after it determined that private emergency medical care and general ambulance services contracted for by municipality do not constitute "state action."
Seventh Circuit

Posted 06 Oct 2014 in Case Notes
Last Monday’s Supreme Court “long conference” did not disappoint.  The Supreme Court granted a total of 11 petitions.Supreme Court3  At least four of those cases are relevant to local government. Housing discrimination.  For the third time the Court has accepted a case involving this issue of whether disparate-impact (as opposed to disparate treatment) claims can be brought under the Fair Housing Act (FHA).  It remains to be seen if Texas Department of Housing and Community Affairs v. The Inclusive Communities Project will settle like its predecessors, Mt. Holly v. Mt. Holly Citizens in Action and Magner v. Gallagher.  The 11 federal circuits that have decided this issue have all held that disparate-impact claims are actionable.  The Supreme Court is expected to rule to the contrary.  Local government have been sued for disparate impact under the FHA and have sued other entities. Fourth Amendment search.  In its second Fourth Amendment case of the term, Rodriguez v. United States, the Court will decide whether a police officer violates the Fourth Amendment by extending (for just a few minutes) an already-completed traffic stop for a dog sniff.  The Eighth Circuit held the search in this case was reasonable.  The police officer waited seven or eight minutes after the traffic stop was completed before deploying his sniffer dog because he wanted backup given that there were two people in the stopped car. Employment discrimination. 

Posted 01 Oct 2014 in Case Notes
If your medicine cabinet is filled with old prescriptions and other medications that you no longer want or can use, you might have asked: how and where should I get rid of these? Pills Local governments are beginning to provide an answer. Old medications are not only misused, they also pose dangers for the environment. Flushing pills or putting them in the trash can contaminate drinking water and cause other environmental problems. But disposal programs can be expensive. What's a local government to do? Alameda County, California, devised a solution. It passed a Safe Drug Disposal Ordinance that requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to participate in a program to collect and dispose of the County's unwanted drugs. Manufacturers and distributors objected, however. They claimed that requiring them to pay for the program violates the dormant Commerce Clause because it discriminates against or directly regulates interstate commerce. Are they right? On Tuesday, the Ninth Circuit said that the program does not violate the Commerce Clause. The court ruled that

Posted 29 Sep 2014 in Monday Morning Review

Here is last week's one published decision involving a local government: Seventh Circuit Norton v. City of Springfield, No. 13-3581 (Sept. 25, 2014): The court ruled that the City's panhandling ordinance is a valid time, place, and manner requirement and therefore withstands a First-Amendment challenge. See coverage from Julie Tappendorf of Municipal Minute here. Image courtesy of Flickr from Ken Lund (creative-commons license, no changes made). (Sept. 22, 2014-Sept. 26, 2014)...

Posted 23 Sep 2014 in IMLA Briefs
Its simple math.  Really.  But will the Supreme Court do it?  The Eleventh Circuit refused. The question in Alabama Department of Revenue v. CSX Transportation is whether a state discriminates against rail carriers in violation of federal law even when rail carriers pay less in total state taxes than motor carriers?  No, argues the State and Local Legal Center (SLLC) in an amicus brief.  Forty-two states exempt motor carriers from sales tax on diesel fuel.  This case is relevant to local government because a number of cities and counties in Alabama impose an additional sales tax on railroad diesel fuel.calc Rail carriers (railroads) in Alabama pay a four percent sales tax on diesel fuel.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  The Railroad Revitalization and Regulatory Reform Act (4-R) prohibits state and local governments from imposing taxes that discriminate against railroads.  Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax.  But, the Eleventh Circuit refused to compare the total taxation of railroads and trucks to avoid the “Sisyphean burden of evaluating the fairness of the State's overall tax structure.”  Instead it concluded Alabama’s sales tax on railroads violates 4-R because Alabama’s competitors don’t pay it. The SLLC brief argues that given state’s traditional power to tax the Court should interpret 4-R narrowly.   The brief suggests the Court could take three approaches to rule in favor of Alabama.

Posted 23 Sep 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn Second Circuit Sixth Circuit
  • United Pet Supply, Inc. v. City of Chattanooga, No. 13-5181 (Sept. 18, 2014): The court found that: (i) private animal-welfare employee that contracted with City may not assert qualified immunity; (ii) officers may not assert qualified-immunity defense to "official capacity" suits; (iii) seizure of animals without prior hearing did not violate procedural due process; (iv) revocation of permit without hearing did violate due process; (v) that warrantless animal seizure did not violate Fourth Amendment because of exigent circumstances; and (vi) seizure of records without warrant violated clearly established Fourth-Amendment right and therefore officer was not entitled to qualified immunity.
  • Finn v. Warren County, No. 13-6629 (Sept. 16, 2014): In action alleging inadequte medical care in violation of the Eighth Amendment and state law claims including negligence after Finn died in his cell, the court reversed grant of summary judgment for officer, remanded for trial on negligence claim, and otherwise affirmed judgment below.
Seventh Circuit

Posted 18 Sep 2014 in Tips and Tactics
An appellant has the opportunity to make it easy for the appellate panel to locate the relevant documents in the record.  GavelIf you have the responsibility to create part of the record, select a page numbering system that makes sense so no pages have the same number.  Create a meaningful index to the record.  For example, if a document has an odd or misleading title, provide that title and, in brackets] a few accurate, neutral, descriptive words.  Identify the declarant or witness if that information is not in the title.  Provide copies of the index in the brief and in each volume of the record, marking which documents are in which volume. Cite to the record for every point.  Dominguez v. Financial Indemnity Co., 183 Cal.App.4th 388, 392 n.2 (2010) (“because FIC’s brief fails to provide a citation to the appellate record for these facts, we do not consider them”); AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 620 S.E.2d 655, 657 (2005) (“It is not the function of this court to cull the record on behalf of a party”).  It almost goes without saying that you should cite accurately to the page with the relevant material.  Scott v. Bank of America, 292 Ga. App. 34 , 663 SE 2d 386, 387 (2008) (“while the parties cite to the appellate record, many of the page numbers cited are incorrect”).  Cite to the record by page and line, if the lines are numbered, even if that specificity is not required.  Skinner v. State, 83 Nev. 380, 432 P.2d 675, 384 & n.4 (1967); Anderson v. Meyer Broadcasting Co., 630 N.W.2d 46, 50 (N.D. 2001).  Cite by page and paragraph or use terms like “start,” “middle,” and “end” if there are no line numbers.

Posted 16 Sep 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn Ninth Circuit Eleventh Circuit
  • West v. Davis, No. 13-14805 (Sept. 8, 2014): The court found that district court improperly granted summary judgment for security guard in case in which West challenged the actions of a security guard at courthouse security checkpoint; district court should have applied standard for "seizures" under the Fourth Amendment.
D.C. Circuit

Posted 16 Sep 2014 in Case Notes, Commentary
While the Supreme Court’s next term officially begins on October 6, its “long conference” is September 29.  At this conference the Court will review a backlog of petitions that have been piling up over the summer.  SCOTUSblog complies a list of petitions that it thinks have a reasonable chance of being granted.  Eight of the petitions the Court will consider either during the “long conference” or at a later conference directly involve or impact local governments.5554035521_f6b59ccafa_n Public nuisance.  A Brighton, Michigan, ordinance presumes that an unsafe structure will be demolished as a public nuisance if the cost of repairing it exceeds its value.  The owner has no right to repair the structure.  Brighton property owners wanted to repair two unsafe structures even though Brighton estimated it would cost almost double the property value do so.  In Bonner v. City of Brighton, Michigan, the property owners claim the ordinance violates substantive and procedural due process. Employment.  Under federal employment law to bring a discrimination claim a plaintiff must prove that an “adverse action” occurred, and to bring a retaliation claim a plaintiff must prove a “materially adverse action” occurred.  The question in Kalamazoo County Road Commission v. Deleon is whether either can be proven when an employer grants an employee’s request for a job transfer (and the new position turns out to be less desirable than the old position).  The International Municipal Lawyers Association (IMLA) filed an amicus brief in this case.

Posted 11 Sep 2014 in Tips and Tactics
Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan & Ricks, Top 10 Ways to Write a Bad Brief, N.J. Law. (2006).  Add extra leading between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting fountain peninstead of substituting a paragraph mark. Choose block quotes carefully and sparingly.  Judge Alex Kozinski remarked: “Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.” Kozinski, The Wrong Stuff, B.Y.U.L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block.  Write the lead in to the block to reveal its importance.  If the block is important because it states the three elements of this or the five tests for that—then add letters or numerals in brackets or otherwise format to assist the reader.  Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity.