Posted 26 Sep 2013 in Tips and Tactics

For any local-government attorney interested in attending a worthwhile conference focused on appellate practice, I highly recommend the Appellate Judges Education Institute 2013 Summit to be held November 14-17 in San Diego. Here's a summary of highlights of this year's meeting: Highlights will include conversations with Justice Sandra Day O’Connor, the United States Solicitor General Donald B. Verrilli, Jr. and the Chief Justice of the California Supreme Court, Tani G. Cantil-Sakauye.  The programs put together by the Council are designed to meet...

Posted 25 Sep 2013 in IMLA Briefs
When is it appropriate for a federal court to decide a case that is pending in state court?Supreme Court On the Supreme Court’s docket is a case that addresses this very issue, giving the Court the chance to once again ponder the limits of the Younger abstention doctrine. That case, on appeal from the Eighth Circuit, is Sprint Communs. Co., L.P. v. Jacobs, Case No. 12-815. At issue is whether Younger abstention applies only when the underlying state proceeding is “coercive” or whether it is sometimes appropriate for federal courts to abstain from hearing cases that are “remedial” in nature.  Many cases dealing with Younger abstention have turned on that distinction. But the difference between “coercive” and “remedial” proceedings, and the way courts classify cases as one or the other, is anything but clear-cut.  Indeed, the distinction could turn on whether the government or a private party initiated the action, as “coercive” proceedings are typically described as those that are criminal or quasi-criminal in nature.

Posted 23 Sep 2013 in Case Notes

The Ninth Circuit issued its decision Friday in Pacific Shores Properties, LLC v. City of Newport Beach, No. 11-55460. In the case, plaintiffs alleged that a City ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause because the ordinance had the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential districts. Although the district court had granted summary judgment for the City, the Ninth...

Posted 23 Sep 2013 in Monday Morning Review

Here's how local governments fared in the federal courts of appeals during the past week. Second Circuit Velez v. City of New York, No. 12-1965-cv (Sept. 18, 2013) (in a case where a police informant was killed and his representative brought suit against City, finding that district court properly required jury to find a "special relationship" between informant and police, and that no new trial was required). Carver v. Nassau County Interim Finance Authority, No. 13-0801 (Sept. 20, 2013) (in suit challenging wage freeze for County...

Posted 18 Sep 2013 in Tips and Tactics
NYcourtA nonparty may be vitally interested in the outcome of pending litigation or a pending appeal.  The interest may be so great and so direct as to require that the nonparty be made a party.  Such a nonparty is frequently but unfortunately spoken of as indispensable.[1]  When the interest is somewhat less, however, the nonparty may seek leave to intervene or to appear as an amicus or, alternatively, watch the litigation from the sidelines.[2]  What considerations bear on the choice of intervention and appearance as an amicus? Most significantly, an intervenor is bound as a party, whereas an amicus curiae is not a party and is not bound by the judgment.[3]  That distinction is a strong encouragement for a nonparty to proceed as an amicus curiae and retain the ability to fight again in the future, especially if the nonparty’s ability to participate in and influence the trial, appeal, and outcome as an intervenor are not entirely clear. As a party, an intervenor will have the right to appeal, denied to an amicus, but may be held liable for attorney fees and costs.[4]  An intervenor will be bound by the judgment for purposes of res judicata and collateral estoppel, while an amicus will not.

Posted 16 Sep 2013 in Monday Morning Review

Here's how local governments fared in the federal courts of appeals during the past week. Eighth Circuit Brian Johnson v. Minneapolis Park, No. 12-2419 (Sept. 11, 2013). Finding that individual seeking to distribute Bibles during festival in public park is likely to prevail in his First Amendment challenge. See our coverage here. Ninth Circuit C.B. v. City of Sonora, No. 11-17454 (Sept. 12, 2013). Remanding for new trial and addressing qualified immunity issue under Fourth Amendment arising out of handcuffing and driving juvenile from school. Sylvia Landfill Trust v. City...

Posted 16 Sep 2013 in Case Notes
[caption id="attachment_107" align="alignright" width="199"]8th Circuit: Park did not adequately justify the need to limit literature distribution 8th Circuit: Park did not adequately justify the need to limit literature distribution[/caption] An evangelical Christian, Brian Johnson, sought to distribute Bibles at a gay-pride festival in a public park. The park board would not allow it. It had adopted a policy limiting literature distribution to confined areas, due to security concerns and the festival’s size. Johnson claimed the policy violated the First Amendment, and sought an injunction barring its enforcement. In a 2-1 decision released Wednesday, Johnson v. Minneapolis Park and Recreation Bd., the Eighth Circuit ruled that Johnson would likely prevail on his claim.

Posted 16 Sep 2013 in Tips and Tactics

Many brief writers mistakenly think of the table of contents as a nuisance that their secretaries must complete before briefs are finished. This fundamental error can profoundly affect the quality of their documents. Once a significant part of a document has been prepared, and often when a discrete segment is completed, the author should pull the table of contents that then exists to study. That table may reveal a missing argument to be added, an editorial adjustment to be made in...

Posted 11 Sep 2013 in Case Notes
[caption id="attachment_89" align="alignright" width="300"]9th Circuit: Landlords do not have a viable constitutional claim against City housing program 9th Circuit: Landlords do not have a viable constitutional claim against City housing program[/caption] Your community’s housing conditions are in crisis. Too many landlords ignore codes. They disregard tenants’ concerns. And their properties are hardly habitable. But they continue to collect rent—from tenants with little capacity to protect themselves. So your local government fashions an innovative program, one that empowers tenants. It allows tenants living in troubled properties to withhold a portion of their rent and to use it for needed repairs. Landlords sue. They claim that your program violates their federal substantive due process rights. Do they have a winning constitutional argument? Not according to the Ninth Circuit, which ruled Monday in Sylvia Landfield Trust v. City of Los Angeles, No. 11-55904, slip op. (Sept. 9, 2013), that the City of Los Angeles’s Rent Escrow Account Program is constitutional.

Posted 10 Sep 2013 in Case Notes
[caption id="attachment_79" align="alignright" width="300"]Local government regulation of immigration through housing ordinances has divided the courts. Local government regulation of immigration through housing ordinances has divided the courts.[/caption] Can a local government prohibit the leasing of housing to persons who entered the United States illegally? Since June, three federal courts of appeals have tackled that difficult question—and reached different results. The decisions present a range of perspectives on whether local housing ordinances “conflict” with federal law or intrude upon a “field” reserved to the federal government. They highlight the uncertain contours of the preemption doctrine—and demonstrate the risk facing any local government that regulates in this space.