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Posted 22 Mar 2016 in Case Notes, Commentary
In a per curiam (unauthored) opinion, which concurring Justices Alito and Thomas call “grudging,” the U.S. Supreme Court has ordered the Supreme Judicial Court of Massachusetts to decide again whether Massachusetts’s stun gun ban is constitutional. Currently eight states and a handful of cities and counties ban stun guns.  The highest state court in Massachusetts held that the Second Amendment doesn’t protect stun guns because they weren’t in common use at the time the Second Amendment was enacted, they are “unusual” as “a thoroughly modern invention,” and they aren’t readily adaptable for use in the military.

Posted 15 Mar 2016 in Case Notes
On March 10, 2016, the California Court of Appeal, Second Appellate District, Division Eight (LA), published an opinion in Lamar Central Outdoor, LLC v. City of Los Angeles (Mar. 10, 2016, B260074) __ Cal.App.4th ___, a case involving another round in the continuing litigation between outdoor advertising companies and the City of Los Angeles over “offsite signs”—billboards with commercial messages in locations other than at a property owner’s business.  In 2002, the city established a permanent ban, with some exceptions, on new offsite signs, including a ban on alterations of legally existing offsite signs. A few years later, the city banned offsite signs with digital displays. The Los Angeles Municipal Code “prohibits signs if they ‘[a]re off-site signs, including off-site digital displays, except when off-site signs are specifically permitted pursuant to a relocation agreement’” and also prohibits “alterations, enlargements or conversions to digital displays of legally existing off-site signs, except for alterations that conform to . . . this Code.”  (LAMC, § 14.4.4.B.11.)

Posted 03 Feb 2016 in Case Notes, Commentary, Roundup
The Friday before and the Tuesday after Martin Luther King, Jr. Day the Supreme Court accepted a total of nine cases, including a challenge to the President’s executive order allowing undocumented parents of children who are citizens to remain in the United States.  United States v. Texas will be heard this term and decided by the end of June. Oral argument will be held next term in some of the other cases accepted mid-January. Four of the eight cases accepted, in addition to the immigration case, affect state and local governments.  While I will write more about each of these cases later, for now, below is a brief synopsis of them.

Posted 25 Jan 2016 in Case Notes, Commentary
In an already action packed term the Supreme Court has definitively secured this term’s place in history but agreeing to decide whether the President’s deferred action immigration program violates federal law or is unconstitutional. The Court will issue an opinion in United States v. Texas by the end of June 2016.  The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States. About 5 million people are affected.  Twenty six states sued the United States and won before the Fifth Circuit.  The Court will decide four legal issues in this case.

Posted 25 Jan 2016 in Case Notes, Commentary
It was a typical oral argument at the Supreme Court in a “big” case. Protesters outside with opposing messages tried to out yell each other, but everyone inside was listening to Justice Kennedy.  In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

Posted 23 Dec 2015 in Case Notes, IMLA Briefs
You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional.  In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.   Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.  The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.  Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent.

Posted 10 Dec 2015 in Case Notes, Commentary
Every year the Supreme Court refuses to hear thousands of cases. A denial of certiorari does not mean the Court agrees with the lower court decision. So most cert denials go unnoticed.   That said, many eyebrows were raised for many reasons when the Court denied cert in Friedman v. City of Highland Park. The issue in the case was whether the City of Highland Park could ban assault weapons and large capacity magazines. 

Posted 18 Sep 2015 in Case Notes, Commentary
Imagine being sued in a court where there is no appeals process and the legal precedent relevant to your case may not be written down. That is the situation Dollar General has found itself, and state or local governments may find themselves in, if the Supreme Court does not reverse the Fifth Circuit’s decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians.