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.

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...