Posted 16 Jul 2014 in Case Notes
As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby Lobby. Gavel The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations. Though not obvious, this case may have a significant impact on land use regulation.  For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion.

Posted 16 Jul 2014 in Monday Morning Review
Here are last week's published decisions involving local governments, a couple days late this week:Alexandria-court Second Circuit E.M. v. New York City Dept. of Ed., No. 11-1427 (July 11, 2014) (in IDEA case, concluding that district court improperly concluded that IEP was adequate by relying on retrospective evidence extrinsic to the IEP). Fourth Circuit Lefemine v. Wideman, No. 13-1629 (July 11, 2014) (reversing determination that successful plaintiff in 1983 First-Amendment case was not entitled to attorney's fees).

Posted 14 Jul 2014 in Case Notes
In a unanimous opinion in McCullen v. Coakley,Supreme Court3 the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment. Massachusetts adopted this statute because protesters routinely violated a previous statute.  Petitioners were “sidewalk counselors” who claimed the buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.” The State and Local Legal Center’s (SLLC) amicus brief points out that cities frequently use buffer zones in numerous contexts.  For example, prior to McCullen, lower courts upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners.  McCullen begs an obvious question:  will any buffer zone statutes and ordinances survive constitutional scrutiny now?

Posted 08 Jul 2014 in Commentary
Litigation offers attorneys many opportunities to choose how they will behave and what they will say. youre it The best course is to take the high road at every opportunity.  Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress.  A small meanness may be reciprocated, then followed by an escalation and tit for tat.  Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case. All attorneys are held to a high standard by the law and the rules of professionalism and civility.

Posted 07 Jul 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:law books Sixth Circuit Hescott v. City of Saginaw, No. 13-2103 (July 2, 2014) (ruling that district court erred denying attorney's fees to Hescotts in their successful 1983 action claiming that the City had unconstitutionally seized their personal effects by demolishing their property). Seventh Circuit Scherr v. City of Chicago, No. 13-1992 (July 2, 2014) (affirming that 1983 suit against officer based on alleged Fourth-Amendment violation was properly dismissed).

Posted 01 Jul 2014 in Case Notes
This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert's sign ordinance against a First-Amendment challenge.SupremeCourt2 The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions. The Court could use this case to clarify when a local ordinance is "content-based" or "content-neutral," a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town's ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs:

Posted 30 Jun 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:SCT pillars First Circuit Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established):

Posted 27 Jun 2014 in Case Notes
Bible Baptist Church Welcomes You!  1 Block --> So reads the sign—decorated with a gold cross and white Bible—that the Borough of Shickshinny, Pennsylvania, allowed to be placed on its right-of-way.church-state A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause. Tearpock-Martini's lawsuit had a problem though. Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law. Is her suit time-barred? In a decision this week, the Third Circuit said that it is not:

Posted 26 Jun 2014 in Case Notes
BarricadeA local government can create a 35-foot buffer zone to restrict speech on a public street only if it has first made a serious effort to address the issue in other ways. That's the lesson of McCullen v. Coakley, the Supreme-Court decision today that strikes down a Massachusetts statute that makes it a crime to knowingly stand on a public way or sidewalk within 35 feet of a location where abortions are performed. Although the Court found that the law is content-neutral—and therefore not subject to strict scrutiny—the Court ruled that the Commonwealth had "too readily foregone options" that would not substantially burden speech. What are those options?

Posted 26 Jun 2014 in Case Notes
Supreme Court watchers love technology cases.Supreme Court Technology is for the young, so the cliché goes, and the youngest Justices are middle age.  Court watchers speculate, will the Justices even understand the technology they are ruling? Justice Robert’s 28-page opinion in Riley v. California, discussing encryption, apps, and cloud computing, reads like a primer on how cell phones work. The Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone.