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.

Posted 07 Sep 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn Sixth Circuit Eighth Circuit

Posted 05 Sep 2014 in Tips and Tactics
One successful approach to the preparation of opening briefs is to assume the court knows nothing of the subject and is uncomfortable making a decision that no judge has made before.  Each step in the argument must then be accompanied by citation to relevant precedent reflecting the wisdom of the that step and, overall, of the decision you seek.  The key is to 8122523_ab151ea98b_zidentify the right starting place and the steps required to travel from the starting point to the desired end, avoiding the tendency to slide over or combine them. Briefs using this model should provide all forms of authority needed to convince the judge to take the next step.  Possible evidentiary issues need to be resolved; substantive questions need to be answered or shown to be inapplicable.  As each step is explained and answered, the next step can be introduced and its issues and questions answered.  At the end, the table of contents alone can walk the reader through the points to the desired ruling. Once the steps are identified, the writer may elect to address evidentiary issues as a group, at the beginning or end of the brief.  Alternatively, a writer may prefer to brief all issues presented by one step before turning to the next step.  No matter which technique is adopted, work on later steps will often turn up cases and points that can strengthen the earlier steps.  As work progresses, a single step may be perceived as comprising several steps, requiring additional reworking.

Posted 03 Sep 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn First Circuit
  • Town of Johnston v. Fed. Housing Finance Agency, No. 13-2034 (Aug. 27, 2014): The court affirmed the dismissal of the municipalities' claim that Fannie Mae and Freddie Mac failed to pay taxes on property transfers; the court found that statutory exemptions from taxation applied. As the court put it: "Six other circuits have recently considered this attempt to shoe-horn a transfer tax into a real property tax, and they have unanimously rejected the argument."
Second Circuit Third Circuit

Posted 03 Sep 2014 in IMLA Briefs
On Friday, IMLA filed its brief in Wyatt v. Gonzalez,judicial bench a petition stage Supreme Court case, which involves a question of whether immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” where the plaintiff offered no contradictory evidence.  In this case, the police officer was trapped inside a vehicle controlled by someone who had already committed several dangerous felonies.  The officer shot and killed the driver of the van, after he resisted verbal commands and non-lethal force.  The plaintiffs did not dispute that the driver of the van “stomped” on the accelerator with the officer trapped inside.  Nonetheless, the Ninth Circuit ruled that summary judgment on the plaintiffs’ Fourth Amendment claim was inappropriate because the parties disputed how fast the van was traveling at the time the officer employed deadly force. IMLA’s brief argues that the Ninth Circuit’s focus on the speed of the van is misguided, as that particular fact is not material for the purposes of the summary judgment analysis. 

Posted 28 Aug 2014 in IMLA Briefs
In T-Mobile South v. City of Roswell, the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement. CellTower The State and Local Legal Center’s (SLLC) amicus brief, which IMLA joined, argues it does. T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential.  The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone that were compatible with “the natural setting and surrounding structures.”  T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree that would be about 25-feet taller than the pine trees surrounding it. After a hearing, where city councilmembers stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk.

Posted 27 Aug 2014 in Monday Morning Review
Apologies that this edition is delayed. I was tied up with a significant filing for the past week. The courts were busy too. Here are the last two weeks' published decisions involving local governments:court collumn First Circuit
  • Penn v. Escorsio, No. 13-2309 (Aug. 22, 2014): The court affirmed the district court's denial of qualified immunity at the summary judgment stage to corrections officers alleged to be deliberately indifferent to risk that detainee could commit suicide.  The court found that the issues presented on appeal were purely factual, and the court had no jurisdiction to decide them on interlocutory appeal.
Second Circuit

Posted 27 Aug 2014 in Case Notes
[Editor's Note: My colleague, Gary Schons, contributed this post. We hope to have more posts from Gary in the future. --Matt Schettenhelm] One thing common to all appellate lawyers--- they love to appeal.Gavel But, as all appellate lawyers know, the right to appeal is fixed by statute. (Trede v. Superior Court (1943) 21 Cal.2d 630.) Thus, our ability to practice our craft is dependent on the leave granted by the legislature. In this case, the issue before a California appellate court was whether a specific provision of the anti-SLAPP statute granting the right to an immediate appeal of an order granting or denying a special motion is effectively nullified by a separate provision of the statute making it wholly inapplicable to enforcement actions brought by state, county or city prosecutors. As the appellate court noted in the preamble to its decision, this issue was “thoroughly briefed,” and perhaps ominously, oral argument was “vigorous indeed.” I’ll bet it was.

Posted 26 Aug 2014 in Case Notes, Commentary
Even though the Supreme Court’s next term won’t officially begin until October 6, the Court has already accepted about 40 of the 70 or so cases it will decide in the upcoming months. For a more detailed summary of all the cases the Court has accepted so far affecting local government, read the State and Local Legal Center’s Supreme Court Preview for Local Governments.Supreme Court3 Here is a quick highlight of what is on the Court’s docket right now that will affect local government: