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Posted 13 Dec 2016 in Case Notes, IMLA Briefs
The Supreme Court refused to hear a case involving the question of whether a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional. As is always the case, the Supreme Court gave no reason for denying the petition. In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In 2010 the Colorado legislature passed the law described above to improve sales tax collection. The Direct Marketing Association sued Colorado claiming the law unconstitutionally discriminates against interstate commerce and is unconstitutional under Quill.   

Posted 09 Dec 2016 in Case Notes
State Farm Fire and Casualty Co. v. United States ex rel. Rigsby is the perfect case for an eight member Court. So simple a unanimous Court issued an opinion in about a month after oral argument. The False Claims Act (FCA) allows third parties to sue on behalf of the United States for fraud committed against the United States. Per the Act a FCA complaint is kept secret “under seal” until the United States can review it and decide whether it wants to participate in the case.

Posted 07 Dec 2016 in Case Notes, Commentary
It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez. (Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.) In Los Angeles County v. Mendez the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

Posted 22 Nov 2016 in Case Notes, Commentary, IMLA Briefs
In Crutchfield v. Testa the Ohio Supreme Court held that Ohio’s commercial activity tax (CAT) applies to online vendors even if they lack a physical presence in the state. More technically, the court refused to extend the U.S. Supreme Court’s holding in Quill Corp. v. North Dakota (1992), that states cannot require retailers with no in-state physical presence to collect sales tax, to Ohio’s privilege-of-doing-business tax. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of this result.

Posted 08 Nov 2016 in Case Notes, Commentary
You don’t have to be a linguist to understand that there is a wide gap between the meaning of “some” and “meaningful.” The Supreme Court must pick between these words to determine what level of educational benefits students with a disabilities must receive. The relevance of a special education case to local governments may not be obvious. But depending on how the Supreme Court rules, this case could mean cost increase for some, if not many, school districts. To the extent local governments fund local school districts and/or compete with them for limited state dollars, this case is relevant.

Posted 07 Nov 2016 in Case Notes, Commentary
Every time a federal agency thinks the scope of a preemption clause in federal law is too narrow may it just write a regulation expanding it? That is the heart of the matter in Coventry Health Care of Missouri v. Nevils. The question of most interest to state and local governments in this case, more technically, is whether Chevron deference applies to an agency’s regulation construing the scope of a statute’s express-preemption provision.

Posted 03 Nov 2016 in Case Notes, Commentary
In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license. None of the schools accommodate deaf students. So a number of deaf students sued the Texas Education Agency (TEA) arguing it was required to bring the driver education schools into compliance with the Americans with Disabilities Act (ADA).    In Ivy v. Morath the Supreme Court was supposed to decide when state and local governments are responsible for ensuring that a private actor complies with the ADA. The Court dismissed the case concluding it was moot most likely because Texas claimed that four of the students suing completed the driver education course and one moved out of state.

Posted 31 Oct 2016 in Case Notes, Commentary
The Supreme Court keeps on accepting First Amendment cases—perhaps because among the current Court there is much agreement on the First Amendment, so being down a Justice doesn’t matter. This does not bode well for state and local governments, like North Carolina in this case. For better or worse, this case like Expressions Hair Design v. Schneiderman, accepted in September, gives the Supreme Court a chance to refine its holding in Reed v. Town of Gilbert, Arizona (2015).

Posted 31 Oct 2016 in Case Notes, Commentary
The Supreme Court has agreed to decide cases accusing federal government officials at the highest levels of mistreating people investigated for possible terrorist connections after 9/11. All Supreme Court qualified immunity cases, including Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, affect state and local governments. These cases raise issues that frequently come up in run-of-the-mill qualified immunity cases, in particular, whether the court defined the “established law” at a high level of generality instead of considering the specific facts of the case when deciding whether to grant or deny qualified immunity.