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Posted 08 May 2014 in Case Notes
If you spend your time following baseball, local governments, and appellate litigation (as I do),Baseball the Ninth Circuit case of City of San Jose v. Office of the Commissioner of Baseball, No. 14-15139, is one to watch. The issues are simple: the City of San Jose would like the Oakland A's to relocate there, but MLB has refused to permit it. Why? According to the City, another team, the San Francisco Giants, "owns" the exclusive rights to San Jose. The City explained that MLB teams have an "exclusive territorial rights agreement,"one that the City claims "constitutes a blatant market allocation scheme that is illegal under the American antitrust laws in all other professional sports." The district court found that

Posted 05 May 2014 in Case Notes
In addition to addressing local-government prayer this morning,CellTower the Supreme Court also decided to hear and answer another question impacting local governments: when a city denies a request to place a cell tower, how formally must it act? The Court granted cert in T-Mobile South, LLC v. City of Roswell, No. 13-975, which specifically asks what a local government must do to satisfy the Communications Act's "in writing" requirement at 47 U.S.C. 332(c)(7)(B)(iii):
Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record
As the Eleventh Circuit explained in its decision, some circuit courts have ruled

Posted 05 May 2014 in Case Notes
The Supreme Court has released its decision in Town of Greece v. Galloway, 8468059167_e8ebfeedbf_zconcluding that the Town's prayer practice has a "permissible ceremonial purpose" and is "not an unconstitutional establishment of religion." Writing for the Court, Justice Kennedy ruled that the Town's prayer practice "fits within the tradition long followed in Congress and the state legislatures." Some highlights from his opinion:

Posted 02 May 2014 in Case Notes, Commentary
Given the Supreme Court’s prominent role in deciding important issues of the day, it is easy to get caught up in the latest juicy Court mishap.  pollutionJustice Scalia erroneously depicted precedent in his dissent in EPA v. EME Homer City Generation, which had to be corrected. But don’t let that be the reason you read this blog post.  This case is important for local governments. The Clean Air Act’s Good Neighbor Provision prohibits upwind states from emitting air pollution in amounts that will contribute significantly to downwind states failing to attain air quality standards.  In EPA v. EME Homer City Generation the Supreme Court resolved two issues related to the Good Neighbor Provision.  Justice Ginsburg wrote the 6-2 opinion. The Court first considered how responsibility for air pollution should be allocated.

Posted 28 Apr 2014 in Case Notes, Commentary
Does an anonymous, unverified tip of dangerous driving justify a traffic stop? Yes, says a divided Supreme Court.highway stop In Prado Navarette v. California an anonymous 911 caller reported that a vehicle had run her off the road.  The Court held 5-4 that a police stop complied with the Fourth Amendment because, under the totality of the circumstances, the officers had reasonable suspicion that the driver was intoxicated.  When police stopped the Navarette brothers they smelled marijuana.  A search of the vehicle revealed 30 pounds of marijuana. The Court’s rationale, in an opinion written by Justice Thomas, is as follows.  The tip of dangerous driving was sufficiently reliable because

Posted 25 Apr 2014 in Case Notes, Commentary
The Supreme Court’s recent affirmative action ruling should be viewed through the lens of public employment not just public universities.Supreme Court3 In Schuette v. Coalition to Defend Affirmative Action the Supreme Court held 6-2 that voters may by ballot prohibit affirmative action in public universities admission decisions.  While this case was limited to the use of race in public university admission decisions, Michigan’s constitutional amendment also prohibits the use of racial-preference in state and local government employment and contracting.  Presumably, these provisions are also constitutional.  As NCSL’s Affirmative Action:  State Action chart describes, a number of states prohibit the use of affirmative action in local government employment and contracting. In 2003 in Gratz v. Bollinger and Grutter v. Bollinger,

Posted 22 Apr 2014 in Case Notes
In Heien v. North Carolina a police officer pulled over a car because he thought that North Carolina law required that motor vehicles have two working brake lights. It turns out the officer was wrong. SupremeCourt2The North Carolina Court of Appeals concluded that state law requires motor vehicles to only have one working brake light. When the driver and the passenger offered different stories as to where they were going, the officer asked to search the vehicle. Consent was granted and cocaine was found. The U.S. Supreme Court will decide whether a traffic stop is permissible under the Fourth Amendment when it is based on an officer’s misunderstanding of the law. The North Carolina Supreme Court reasoned

Posted 01 Apr 2014 in Case Notes
A County retirement-benefit plan requires an employee to contribute a percentage of his salary to the plan.Retirement But not all employees contribute at the same rate. Instead, an older employee must contribute at a higher rate than a younger employee who enrolls at the same time. Does this violate the Age Discrimination in Employment Act? The Fourth Circuit, in EEOC v. Baltimore County, No. 13-1106 (Mar. 31, 2014), said that in the case of Baltimore County's plan, it does. In the court's view,

Posted 28 Mar 2014 in Case Notes
The Second Amendment confers an individual right to keep and bear arms.Handgun We know that now—after decades of uncertainty—because the Supreme Court said so in District of Columbia v. Heller, 554 U.S. 570 (2008). But how far does the Second Amendment extend? Does it prevent a City from regulating the storage of handguns in homes or the sale of ammunition that expands upon impact, referrred to as hollow-point bullets? In a case decided this week, Jackson v. City and County of San Francisco, No. 12-17803 (Mar. 25, 2014), the Ninth Circuit ruled that those bringing a Second-Amendment challenge to the City and County of San Francisco's handgun and ammunition regulations were not likely to succeed on the merits. What exactly was at issue and how did the court reach its conclusions?