Posted 25 Nov 2013 in Case Notes
A City ordinance bans smoking in most bars and taverns. Does this violate bar owners' federal constitutional rights? Not according to the Seventh Circuit's decision in Goodpaster v. City of Indianapolis, No. 13-1629, released today.Nosmoking The court rejected the bar owners' evidentiary claims and state-law claims. It also found that the ordinance does not violate the owners' substantive due process rights:

Because it does not infringe a fundamental right, the smoking ordinance will stand if it passes rational basis scrutiny. . . .The bar owners have failed to meet this heavy burden. There are numerous reasons the City may have chosen to limit smoking in enclosed public spaces, and the bar owners have failed to disprove all of them.

Posted 25 Nov 2013 in Monday Morning Review

Here are published decisions involving local governments from the federal appellate courts from November 18, 2013 through November 22, 2013: First Circuit: Easthampton Savings Bank v. City of Springfield, No. 12-1917 (Nov. 22, 2013) (certifying state-law questions regarding municipal ordinances addressing foreclosures to the Massachusetts Supreme Judicial Court). See our coverage here. Seventh Circuit: Hamilton v. Village of Oak Lawn, No. 12-3174 (Nov. 20, 2013) (affirming dismissal of 1983 challenge based on alleged unlawful detention under Fourth Amendment). ...

Posted 25 Nov 2013 in Tips and Tactics
We've talked before about how Justice Kagan is one of the Supreme Court's most interesting writers. A thoughtful new article by Laura Krugman Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, builds upon that topic by exploring some of Justice Kagan's most effective writing tools. Here are a few that make Justice Kagan's work so reader-friendly:Official Informal Portrait choice Kagan often opens a sentence with a direct invocation to the reader:
  • "Consider first what the two statutes tell a slaughterhouse to do"
  • "Imagine the converse of the statute described above"
  • "Pretend you are financing your campaign through private donations."
She uses a "generous sprinking" of informal and even colloquial diction:

Posted 25 Nov 2013 in Case Notes

Many cities have struggled with the effects of foreclosures. But given the complex mix of state laws that often governs the issue, how much authority do local governments have in this area? A First Circuit case, Easthampton Savings Bank v. City of Springfield, No. 12-1917 (Nov. 22, 2013) addresses that question. Six banks sued the City of Springfield, Massachusetts, after it had adopted two foreclosure ordinances. The ordinances require: banks to maintain property during the foreclosure process and to provide a $10,000 cash bond to the City; and banks and...

Posted 22 Nov 2013 in Roundup

Yesterday, in a move with significant implications for appellate practice, the U.S. Senate modified its filibuster rules to allow a simple majority to approve individuals nominated to serve on district and appellate courts. This is likely to have a direct impact on President Obama's recent nominees to the D.C. Circuit: Patricia Millett, Nina Pillard, and Robert Wilkins. Ezra Klein provides 9 reasons why the change is a huge deal as a general matter. And Steve Klepper of the Maryland Appellate Blog suggests that the change may also have a...

Posted 22 Nov 2013 in IMLA Briefs

A recent cert petition raises an important question about how the federal Constitution limits State and local taxing authority. In Maryland State Comptroller of the Treasury v. Wynne, the Maryland Court of Appeals held that the dormant Commerce Clause requires every state and subdivision to give its residents a full tax credit for all income taxes that they pay in another state or subdivision. The U.S. Supreme Court has never applied the dormant Commerce Clause to reach that result, and it appears to conflict with...

Posted 22 Nov 2013 in Tips and Tactics

As a very general rule, arguments in a brief should appear in order of descending power or importance.  A judge may stop reading on reaching a clearly winning argument or on deciding that the opening briefing is so weak as not to justify more time.  Either way, there is no benefit in saving the best for last.  There are a few exceptions: Jurisdictional arguments normally go first, even if they are not the strongest.  If the jurisdictional argument is a winner,...

Posted 18 Nov 2013 in Monday Morning Review

Here are published decisions involving local governments from the federal appellate courts from November 11, 2013 through November 15, 2013: First Circuit Winslow v. Aroostook County, No. 13-1319 (Nov. 15, 2013) (finding Winslow is not a whistleblower under Maine Whistleblowers' Protection Act). Second Circuit Lynch v. City of New York, No. 12-3089 (Nov. 15, 2013) (affirming summary judgment for NYPD in Fourth-Amendment challenge to City policy requiring breathalyzer test for any officer whose firearm discharge results in death or injury; testing under the policy...

Posted 14 Nov 2013 in Commentary

One of the significant Supreme Court cases affecting local governments this term has been resolved through settlement. The case is Mount Holly v. Mt. Holly Gardens Citizens in Action. It asked whether a plaintiff bringing a claim under the Fair Housing Act must show intentional discrimination, or whether a "disparate impact" is sufficient. This marks the second time that the Supreme Court has granted certiorari on the question but then not been able to resolve it. Magner v. Gallagher was also settled last year....

Posted 13 Nov 2013 in Tips and Tactics

Careful proofing is as important as excellent writing.  Errors and omissions slip into briefs so easily, especially if several people are working on it.  There are many good tips for proofing, all best employed a day or more after the writing is done: Print and proof the document in hard copy; Read the document aloud, forcing yourself to acknowledge each word, or read with your finger pointing at each word; Never try to proof for everything at once—proof the text, then the headings,...