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Posted 16 Sep 2013 in Case Notes
[caption id="attachment_107" align="alignright" width="199"]8th Circuit: Park did not adequately justify the need to limit literature distribution 8th Circuit: Park did not adequately justify the need to limit literature distribution[/caption] An evangelical Christian, Brian Johnson, sought to distribute Bibles at a gay-pride festival in a public park. The park board would not allow it. It had adopted a policy limiting literature distribution to confined areas, due to security concerns and the festival’s size. Johnson claimed the policy violated the First Amendment, and sought an injunction barring its enforcement. In a 2-1 decision released Wednesday, Johnson v. Minneapolis Park and Recreation Bd., the Eighth Circuit ruled that Johnson would likely prevail on his claim.

Posted 11 Sep 2013 in Case Notes
[caption id="attachment_89" align="alignright" width="300"]9th Circuit: Landlords do not have a viable constitutional claim against City housing program 9th Circuit: Landlords do not have a viable constitutional claim against City housing program[/caption] Your community’s housing conditions are in crisis. Too many landlords ignore codes. They disregard tenants’ concerns. And their properties are hardly habitable. But they continue to collect rent—from tenants with little capacity to protect themselves. So your local government fashions an innovative program, one that empowers tenants. It allows tenants living in troubled properties to withhold a portion of their rent and to use it for needed repairs. Landlords sue. They claim that your program violates their federal substantive due process rights. Do they have a winning constitutional argument? Not according to the Ninth Circuit, which ruled Monday in Sylvia Landfield Trust v. City of Los Angeles, No. 11-55904, slip op. (Sept. 9, 2013), that the City of Los Angeles’s Rent Escrow Account Program is constitutional.

Posted 10 Sep 2013 in Case Notes
[caption id="attachment_79" align="alignright" width="300"]Local government regulation of immigration through housing ordinances has divided the courts. Local government regulation of immigration through housing ordinances has divided the courts.[/caption] Can a local government prohibit the leasing of housing to persons who entered the United States illegally? Since June, three federal courts of appeals have tackled that difficult question—and reached different results. The decisions present a range of perspectives on whether local housing ordinances “conflict” with federal law or intrude upon a “field” reserved to the federal government. They highlight the uncertain contours of the preemption doctrine—and demonstrate the risk facing any local government that regulates in this space.

Posted 10 Sep 2013 in Case Notes
[caption id="attachment_72" align="alignright" width="300"]Federal preemption provisions must be read sensibly Federal preemption provisions must be read sensibly[/caption] [This is the second in a series of posts reviewing unheralded but noteworthy decisions for State and local governments from the Supreme Court’s last term. See Koontz here.] State and local-government attorneys often battle federal preemption—including against broad readings that strain common sense. The case of Dan’s City Uses Cars, Inc., v . Pelkey reminds you why it’s worth it. It’s the story of Robert Pelkey.

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_48" align="alignright" width="300"]If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz. If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz.[/caption] With the Supreme Court recently concluding its 2012 term, now is a good time to look back. You have likely heard plenty about the Court’s high-profile holdings, including that: But it’s often the decisions that slip by quietly that impact you most. We’ll be publishing a series of posts about decisions that didn’t get a lot of press, but that are worth revisiting.

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_39" align="alignright" width="300"]Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute. Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute.[/caption] Crime. Disease. Decreased property values. Adult-oriented businesses are disrupting your community. But you have a plan. You have fashioned a licensing scheme that prohibits nudity and the sale of alcohol at these establishments. You know that courts have allowed zoning regulations that address the “secondary effects” of these businesses. You also know that regulating these businesses can violate the First Amendment. But how closely will a court examine whether your regulations effectively eliminate these adverse effects?

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_33" align="alignright" width="300"]The Supreme Court will evaluate local-government prayer practices this term. The Supreme Court will evaluate local-government prayer practices this term.[/caption] If your community starts its government meetings with a prayer, it might be violating the Constitution. In a case that the Supreme Court will consider in the coming term, Town of Greece v. Galloway, 12-696, the Court will decide whether a local government’s legislative prayer practice runs afoul of the Establishment Clause. The Second Circuit held that the Town of Greece’s prayer practice is unconstitutional because “an objective, reasonable person would believe [it] had the effect of affiliating the town with Christianity.”

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_26" align="alignright" width="224"]Fourth Circuit: a local government can “close” a public forum with a neutral policy, regardless of its intent. Fourth Circuit: a local government can “close” a public forum with a neutral policy, regardless of its intent.[/caption] Your City has flag standards on light poles. They line the City streets. For over 15 years, you have allowed private parties to use this property to place their own flags. Now you have a problem. A group wants to use this City property to fly the Confederate flag during a City parade. The public is fiercely opposed. After your City council first approved the request, it changed course. Its new policy restricts flag-standard use to three flags: the American, State, and City flags. The group sued. It claimed that the City’s change violates its First Amendment rights. Can you successfully defend the City’s policy? In a similar case, the Fourth Circuit recently said yes.