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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?

Posted 12 Mar 2014 in Case Notes
That is the question presented in SCOTUSblog's Petition of the Day.Supreme Court3 The Fourth Circuit ruled in Santos v. Frederick County Bd. of Comm'rs, 725 F.3d 451 (4th Cir. 2013), that
absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.
Frederick County's cert petition argues that this creates a circuit split that the Court should resolve:

Posted 10 Mar 2014 in Case Notes
Congress grants a railroad a right-of-way across public land. RailroadROW The federal government then grants the land to a private landowner, who takes the parcel subject to the railroad right-of-way. The railroad later abandons the right-of-way. Does the right-of-way interest revert to the federal government? Or does the parcel owner gain full and unburdened rights to the property? This morning,  in Brandt Revocable Trust v. United States, No. 12-1173, the Supreme Court ruled 8-1 that the federal government does not retain an interest in the abandoned right-of-way.  As Chief Justice Roberts explained,

Posted 07 Mar 2014 in Case Notes
The Ninth Circuit has denied the sua sponte call for en banc review in Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460, a case that we have written about previously here. NinthCircuitJudge O'Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, filed a dissental, that is, a dissent from the denial of en banc review. It appears to be telegraphing that the Supreme Court should consider the case:

The panel’s opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect. Such unwarranted expansion