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Posted 27 Aug 2014 in Case Notes
[Editor's Note: My colleague, Gary Schons, contributed this post. We hope to have more posts from Gary in the future. --Matt Schettenhelm] One thing common to all appellate lawyers--- they love to appeal.Gavel But, as all appellate lawyers know, the right to appeal is fixed by statute. (Trede v. Superior Court (1943) 21 Cal.2d 630.) Thus, our ability to practice our craft is dependent on the leave granted by the legislature. In this case, the issue before a California appellate court was whether a specific provision of the anti-SLAPP statute granting the right to an immediate appeal of an order granting or denying a special motion is effectively nullified by a separate provision of the statute making it wholly inapplicable to enforcement actions brought by state, county or city prosecutors. As the appellate court noted in the preamble to its decision, this issue was “thoroughly briefed,” and perhaps ominously, oral argument was “vigorous indeed.” I’ll bet it was.

Posted 26 Aug 2014 in Case Notes, Commentary
Even though the Supreme Court’s next term won’t officially begin until October 6, the Court has already accepted about 40 of the 70 or so cases it will decide in the upcoming months. For a more detailed summary of all the cases the Court has accepted so far affecting local government, read the State and Local Legal Center’s Supreme Court Preview for Local Governments.Supreme Court3 Here is a quick highlight of what is on the Court’s docket right now that will affect local government:

Posted 16 Jul 2014 in Case Notes
As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby Lobby. Gavel The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations. Though not obvious, this case may have a significant impact on land use regulation.  For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion.

Posted 14 Jul 2014 in Case Notes
In a unanimous opinion in McCullen v. Coakley,Supreme Court3 the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment. Massachusetts adopted this statute because protesters routinely violated a previous statute.  Petitioners were “sidewalk counselors” who claimed the buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.” The State and Local Legal Center’s (SLLC) amicus brief points out that cities frequently use buffer zones in numerous contexts.  For example, prior to McCullen, lower courts upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners.  McCullen begs an obvious question:  will any buffer zone statutes and ordinances survive constitutional scrutiny now?

Posted 01 Jul 2014 in Case Notes
This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert's sign ordinance against a First-Amendment challenge.SupremeCourt2 The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions. The Court could use this case to clarify when a local ordinance is "content-based" or "content-neutral," a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town's ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs:

Posted 27 Jun 2014 in Case Notes
Bible Baptist Church Welcomes You!  1 Block --> So reads the sign—decorated with a gold cross and white Bible—that the Borough of Shickshinny, Pennsylvania, allowed to be placed on its right-of-way.church-state A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause. Tearpock-Martini's lawsuit had a problem though. Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law. Is her suit time-barred? In a decision this week, the Third Circuit said that it is not:

Posted 26 Jun 2014 in Case Notes
BarricadeA local government can create a 35-foot buffer zone to restrict speech on a public street only if it has first made a serious effort to address the issue in other ways. That's the lesson of McCullen v. Coakley, the Supreme-Court decision today that strikes down a Massachusetts statute that makes it a crime to knowingly stand on a public way or sidewalk within 35 feet of a location where abortions are performed. Although the Court found that the law is content-neutral—and therefore not subject to strict scrutiny—the Court ruled that the Commonwealth had "too readily foregone options" that would not substantially burden speech. What are those options?

Posted 26 Jun 2014 in Case Notes
Supreme Court watchers love technology cases.Supreme Court Technology is for the young, so the cliché goes, and the youngest Justices are middle age.  Court watchers speculate, will the Justices even understand the technology they are ruling? Justice Robert’s 28-page opinion in Riley v. California, discussing encryption, apps, and cloud computing, reads like a primer on how cell phones work. The Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone.

Posted 24 Jun 2014 in Case Notes
Had Utility Air Regulatory Group v. EPA gone the other way, it would be a big deal for cities.352250460_ee2f9e5565  But it didn’t. Cities own many small stationary sources that emit greenhouse gases and will benefit from not having to obtain permits for them. The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.).  In 2007

Posted 20 Jun 2014 in Case Notes, Commentary
The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.5554035521_f6b59ccafa_n The good:  The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor. The bad:  The Court read “official job duties” narrowly to exclude speech about information merely learned at the job. The ugly:  The Court doesn’t decide the obvious next question:  is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment?