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Posted 30 Jul 2015 in Case Notes

Today, the Ninth Circuit issued its Opinion in City & County of San Francisco v. US Department of Transportation, holding the City may not proceed against the Secretary of Transportation and the Pipeline and Hazardous Materials Safety Administration in its case arising from the 2010 San Bruno explosion that killed eight people and leveled an entire neighborhood.  The City sought mandamus relief alleging the agencies unlawfully withheld deciding whether California's Public Utility Commission adequately enforced federal pipeline safety standards and arbitrarily and capriciously approved...

Posted 29 Jun 2015 in Case Notes, Commentary, IMLA Briefs
Same-sex marriage, Affordable Care Act, raisins. What do these three have in common?  The Supreme Court has recently issued a ruling regarding each of them. In Horne v. Department of Agriculture the Supreme Court held 8-1 that the federal government violated the Fifth Amendment Takings Clause by physically setting aside a percentage of a grower’s raisin crop each year without pay. At least six other agriculture set aside programs are in trouble as a result of this case. But what about its impact on state and local government?

Posted 25 Jun 2015 in Case Notes, Commentary
If you were surprised by the Supreme Court’s ruling in the Affordable Care Act Case, you may have even been more surprised by the Court’s ruling in the Fair Housing Act case. In Texas Department of Housing and Community Affairs v. inclusive Communities Project the Supreme Court held 5-4 that disparate-impact claims may be brought under the Fair Housing Act (FHA). All Federal Circuit Courts of Appeals had decided this issue ruling that such claims were possible, though they disagreed about the level of proof required. The Supreme Court was expected to come to the opposite conclusion (or else why would they have taken this case?). Having taken up this question twice before, only to have the cases settle, the Court has finally resolved it.

Posted 25 Jun 2015 in Case Notes, Commentary
Third time is the charm for the Affordable Care Act.  King v. Burwell is the first complete victory for the law. In 6-3 decision the Supreme Court ruled today that health insurance tax credits are available on the 34 Federal Exchanges. The Court’s opinion focused largely on the consequences of ruling to the contrary:  the destruction of health insurance markets.

Posted 24 Jun 2015 in Case Notes, Commentary, IMLA Briefs
In Kingsley v. Hendrickson the Supreme Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for a subjective standard. As a result of this ruling it will be easier for pretrial detainees to bring successful excessive force claims against corrections officers.  

Posted 22 Jun 2015 in Case Notes, Commentary, IMLA Briefs
While cities are rewriting their sign codes, per the Supreme Court’s decision last week in Reed v. Town of Gilbert, Arizona they should check to see if they have a hotel registry ordinance.  If they do, it will need some rewriting too. In City of Los Angeles v. Patel the Supreme Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available to police without at least a subpoena violates the Fourth Amendment. In his dissenting opinion, Justice Scalia cites to the State and Local Legal Center’s (SLLC) amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes:  Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia. 

Posted 19 Jun 2015 in Case Notes, Commentary
Another update on the concealed-weapons permit case, Peruta v. County of San Diego.  The Ninth Circuit held en banc rehearing this week.  Panel consisted of Chief Judge Thomas, and Judges Pregerson, Silverman, Graber, McKeown, Fletcher, Paez, Callahan, Bea, Smith, and Owens.  Chief Judge Thomas dissented from the original three-judge panel opinion, authoried by Judge O'Scannlain and joined by Judge Callahan.

Posted 19 Jun 2015 in Case Notes, Commentary
In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.

Posted 18 Jun 2015 in Case Notes, Commentary, IMLA Briefs
In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide. Gilbert’s Sign Code treats temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest. While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”