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Posted 03 Mar 2014 in Case Notes

Last year, this blog discussed three recent courts of appeals decisions involving local-housing regulations aimed at a person's immigration status. This morning, the Supreme Court denied certiorari in two of the cases,  Farmers Branch v. Villas at Parkside and Hazleton v. Lozano. Both decisions had preempted local ordinances. Image courtesy of Flickr by prathap ramamurthy (creative-commons license, no changes made)....

Posted 27 Jan 2014 in Case Notes
Closed signMay a city require adult bookstores but not other establishments to close between midnight and 10am every night and all day Sunday? In Annex Books v. City of Indianapolis, No. 13-1500 (Jan. 24, 2014), the Seventh Circuit said no. It struck down the City of Indianapolis's requirement, which a district court had previously upheld. Although the City claimed that the restriction would lead to fewer armed robberies at or near the bookstores, the court held that "cities must protect readers from robbers rather than reduce risks by closing bookstores." In the court's view, "[t]hat the City's regulation takes the form of closure is the nub of the problem." First, the court found that the evidence supporting the City's justification is "weak as a statistical matter": the data "do not show that robberies are more likely at adult bookstores than at other late-night retail outlets." Second, the court noted that although

Posted 13 Jan 2014 in Case Notes, IMLA Briefs

This morning, the Supreme Court called for the views of the United States Solicitor General ("CVSG") on whether the Court should grant cert in Comptroller of the Treasury of Md v. Wynne, No. 13-485. The case concerns how the dormant commerce clause limits local taxation. The Court uses the CVSG procedure with respect to only about 10 petitions a year. It indicates at least some degree of interest: the chances of a cert-grant increase significantly in such cases. IMLA and its partners filed the only amicus brief in the case, which...

Posted 08 Jan 2014 in Case Notes, IMLA Briefs
Local governments often establish fixed buffer zones to eliminate congestion and to ensure public safety. Does the First Amendment require a significant change in current local practices?Barricade Next Wednesday, January 15th, the Supreme Court will hear arguments in a case that could address that question. McCullen v. Coakley, No. 12-1168 concerns whether a Massachusetts law that bars entering or remaining within a 35-foot radius of a reproductive-health-care facility violates the First Amendment. The First Circuit upheld the law as a reasonable, content-neutral limit. Local governments have filed two important amicus curiae briefs in the case. First, IMLA joined the National League of Cities, National Association of Counties, the International City/County Management Association, and the U.S. Conference of Mayors in a brief urging the Court to respect state and local governments' need to establish buffer zones to protect public safety. The brief offers a number of examples

Posted 16 Dec 2013 in Case Notes
When T-Mobile sought to place a cell tower in a park owned by the City of Huntington Beach, California, the City granted the company all the regulatory approvals it required. But the City also informed T-Mobile that before it would finally lease the company the rights to the City property that it needed, the company must first obtain approval from City voters, under an amendment to the City charter known as Measure C.CellTower T-Mobile refused. It claimed that Section 332(c)(7) of the Communications Act, 47 U.S.C. § 332(c)(7),  preempts this City requirement. Is T-Mobile correct? Not according to the Ninth Circuit, which decided Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) last week. The court ruled that because Section 332(c)(7) "applies only to local zoning and land use decisions and does not address a municipality's property rights as a landowner," it does not preempt this local requirement, which concerns only how the City may lease its property. Enacted in 1990, Measure C states:

Posted 12 Dec 2013 in Case Notes
In a unanimous decision released Tuesday, the U.S. Supreme Court held that federal abstention under Younger v. Harris, 401 U.S. 37 (1971) applies in only three “exceptional circumstances.”  The Court previously identified those exceptional circumstances in New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (NOPSI) (1989). This week, it confirmed, in Sprint Communications, Inc. v. Jacobs et al., that Younger abstention extends no further. Supreme Court The Court reaffirmed that Younger abstention is appropriate, and federal courts should defer to state courts, only when faced with:
  1.  “state criminal prosecutions,”
  2. “civil enforcement proceedings,” or
  3. “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”
If none of those exceptional circumstances is present, the federal courts may not invoke Younger abstention. As we discussed previously, Sprint involved two separate actions that Sprint Communications, Inc. initiated against members of the Iowa Utilities Board (IUB), one pending in Iowa state court and the other in the U.S. District Court for the Southern District of Iowa.  In both actions,

Posted 05 Dec 2013 in Case Notes
If a public employee reports departmental-safety concerns to his supervisor, and the employee is removed from duty for raising those concerns, does the employee have a viable First Amendment retaliation claim?Policecar In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit ruled that a public employee did not have a viable First Amendment claim under the particular circumstances there. The court ruled that, viewing all the evidence in the light most favorable to the employee, he was speaking as a public employee, not a private citizen. The case involved a City police officer, Brian Hagen, who noticed that members of his SWAT team were often firing their weapons accidentally and negigently. Hagen tried to make his concerns about the team "as public as possible" by sending e-mails and raising the issue  in meetings. Eventually, Hagen was removed from the K-9 team. Hagen claimed that the City and senior officers had retaliated against him for exercising his First Amendment rights.

Posted 03 Dec 2013 in Case Notes
A County ordinance provides that waste generated in the County can be disposed at only a single location -- a publicly owned landfill:Landfill
The dumping or depositing by any person at any place other than at the designated facilities of any acceptable waste generated within the County is prohibited.
The County crafted the ordinance to further many public benefits: to conserve resources, to prevent pollution, and to protect the public health, safety, and well-being. For the public landfill, the ordinance also ensured a revenue stream. But for a private landfill operator located just two miles from the County line, the ordinance was a real problem. The ordinance led to a significant decrease in its business. The operator sued the County. It argued that the County ordinance violates the dormant-commerce clause and the equal-protection clause of the federal constitution. Is the operator correct? In Sandlands C&D LLC v. County of Horry, No. 13-1134 (Dec. 3, 2013), the Fourth Circuit ruled against the operator. It upheld the district court's grant of summary judgment for the County. Applying the Supreme Court's decision in United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 346 (2007), the court ruled that

Posted 25 Nov 2013 in Case Notes
A City ordinance bans smoking in most bars and taverns. Does this violate bar owners' federal constitutional rights? Not according to the Seventh Circuit's decision in Goodpaster v. City of Indianapolis, No. 13-1629, released today.Nosmoking The court rejected the bar owners' evidentiary claims and state-law claims. It also found that the ordinance does not violate the owners' substantive due process rights:

Because it does not infringe a fundamental right, the smoking ordinance will stand if it passes rational basis scrutiny. . . .The bar owners have failed to meet this heavy burden. There are numerous reasons the City may have chosen to limit smoking in enclosed public spaces, and the bar owners have failed to disprove all of them.

Posted 25 Nov 2013 in Case Notes

Many cities have struggled with the effects of foreclosures. But given the complex mix of state laws that often governs the issue, how much authority do local governments have in this area? A First Circuit case, Easthampton Savings Bank v. City of Springfield, No. 12-1917 (Nov. 22, 2013) addresses that question. Six banks sued the City of Springfield, Massachusetts, after it had adopted two foreclosure ordinances. The ordinances require: banks to maintain property during the foreclosure process and to provide a $10,000 cash bond to the City; and banks and...