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.

Posted 10 Sep 2013 in Case Notes
[caption id="attachment_72" align="alignright" width="300"]Federal preemption provisions must be read sensibly Federal preemption provisions must be read sensibly[/caption] [This is the second in a series of posts reviewing unheralded but noteworthy decisions for State and local governments from the Supreme Court’s last term. See Koontz here.] State and local-government attorneys often battle federal preemption—including against broad readings that strain common sense. The case of Dan’s City Uses Cars, Inc., v . Pelkey reminds you why it’s worth it. It’s the story of Robert Pelkey.

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_48" align="alignright" width="300"]If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz. If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz.[/caption] With the Supreme Court recently concluding its 2012 term, now is a good time to look back. You have likely heard plenty about the Court’s high-profile holdings, including that: But it’s often the decisions that slip by quietly that impact you most. We’ll be publishing a series of posts about decisions that didn’t get a lot of press, but that are worth revisiting.

Posted 19 Aug 2013 in Roundup
Some fun items about the Supreme Court. (1) The Supreme Court’s Best Writer Legal-writing guru Ross Guberman recently guest blogged at the Volokh Conspiracy. He’s the author of Point Made, which dissects appellate briefs from leading attorneys. He turned his attention to the Supreme Court’s best writers. Here’s his case for Chief Justice Roberts. And here’s his case for Justice Kagan. They’re both great picks.

Posted 19 Aug 2013 in Tips and Tactics
8122523_ab151ea98b_zSample briefs written by experienced attorneys can be an excellent source of information and guidance in drafting briefs, both as to style and substance.  No matter how experienced a writer may be, there are things to learn from the ways other writers approach a problem. The Internet makes available a variety of appellate briefs worthy of review.

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_39" align="alignright" width="300"]Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute. Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute.[/caption] Crime. Disease. Decreased property values. Adult-oriented businesses are disrupting your community. But you have a plan. You have fashioned a licensing scheme that prohibits nudity and the sale of alcohol at these establishments. You know that courts have allowed zoning regulations that address the “secondary effects” of these businesses. You also know that regulating these businesses can violate the First Amendment. But how closely will a court examine whether your regulations effectively eliminate these adverse effects?

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_33" align="alignright" width="300"]The Supreme Court will evaluate local-government prayer practices this term. The Supreme Court will evaluate local-government prayer practices this term.[/caption] If your community starts its government meetings with a prayer, it might be violating the Constitution. In a case that the Supreme Court will consider in the coming term, Town of Greece v. Galloway, 12-696, the Court will decide whether a local government’s legislative prayer practice runs afoul of the Establishment Clause. The Second Circuit held that the Town of Greece’s prayer practice is unconstitutional because “an objective, reasonable person would believe [it] had the effect of affiliating the town with Christianity.”