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:

Posted 20 Aug 2014 in IMLA Briefs

On Monday, IMLA filed its brief in Schultz v. Wescom, a petition stage Supreme Court case, which involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until the completion of discovery.  The Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it does not amount to a denial of qualified...

Posted 20 Aug 2014 in IMLA Briefs
On Monday, IMLA filed its brief in City of Newport Beach v. Pacific Shores Properties, LLC, a petition stage Supreme Court case, which involves questions of discrimination under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Specifically, the issue before the Supreme Court is whether a disparate-treatment claim under the FHA and/or the8122523_ab151ea98b_z ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects. In this case, the Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit,

Posted 11 Aug 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:court collumn Fourth Circuit
  • Cherry v. Mayor and City Council of Baltimore City, No. 13-1007 (Aug. 6, 2014): In case brought by active and retired Baltimore police officers and fire fighters who participate in City's pension plan, reversing district court's decision that the City had violated the Contract Clause and affirming that the City had not violated the Takings Clause by changing how it calcualtes pension benefits.
Fifth Circuit
  • Thompson v. Mercer, No. 13-10773 (Aug. 7, 2014): In 1983 action against officer who shot and killed individual who had stolen vehicle and led police on a two-hour, high-speed chase, affirming grant of qualified immunity to officer because use of deadly force was not a constitutional violation.
  • Sullo & Bobbitt v. Milner, No. 13-10869 (Aug. 6, 2014): In unpublished decision, affirming dismissal of case brought by attorneys claiming First-Amendment right to access misdemeanor court records within one day of their filing.

Posted 08 Aug 2014 in IMLA Briefs
Every Supreme Court tax case comes down to an argument perhaps most familiar to small children6355404323_cf97f9c58e: “It isn’t fair.” The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief in Comptroller v. Wynne argues that the tax policy choice the Maryland legislature made is fair (or at least fair enough) and that state and local governments should be able to devise tax schemes without judicial interference. In Comptroller v. Wynne the Supreme Court will determine whether the U.S. Constitution requires states to give a credit for taxes paid on income earned out-of-state.

Posted 05 Aug 2014 in Tips and Tactics
Substantial information on legal ethics is available on the Internet, including:
  • http://www.law.georgetown.edu/library/research/guides/legal_ethics.cfm, a broad-based Legal Ethics Research Guide offered by Georgetown Law Library with links to substantial material. Many of the links are to Lexis and Westlaw, but there is an extensive list of available resources, and some Internet links.legal ethics
  • http://legalethics.com/, which focuses on a variety of specific topics, including ethical walls, blogs, ethical issues associated with use of technology by legal professionals, use of the cloud, and a state by state directory.
  • http://www.freivogelonconflicts.com/, described as “A Guide to Conflicts of Interest for Lawyers,” which gathers material into multiple topics such as Co-Counsel/Common Interest, Corporate Families, Enjoining Conflicts, Investing in Clients/Stock for Fees, Lawyers Representing Lawyers.

Posted 04 Aug 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:Alexandria-court Second Circuit

Posted 28 Jul 2014 in Monday Morning Review
Here are last week's published decisions involving local governments: SCT stairs[Update: I added the Ninth Circuit's Daubert decision. (7/31)] Second Circuit Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney's fees to County defendants in case brought by former police officers alleging wrongful termination and defamation. Cox v. Onondaga Sheriff's Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims. Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education. Fourth Circuit