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Posted 27 Apr 2020 in Case Notes, Commentary Written by: Erich Eiselt

Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020). Affirming the Eleventh Circuit-which had reversed the lower court, the Supreme Court holds that annotations to the Georgia Code are effectively produced by lawmakers, who cannot be "authors" for purposes of the Copyright Act, meaning that Lexis, which contracts with the State to license and distribute the annotated code, cannot prevent the annotated version from being placed in the public domain. The Copyright Act grants monopoly protection for "original...

Posted 27 Jun 2019 in Case Notes, Commentary Written by: Lisa Soronen

Research has shown that the more partisan gerrymandered a state legislature is, the more likely it is to preempt local ordinances. This case is important to local governments and to our democracy more generally. In Rucho v. Common Cause the Supreme Court held 5-4 that partisan gerrymandering claims are non-justiciable—meaning that a federal court cannot decide them. Partisan gerrymandering is the practice of drawing legislative districts to benefit one political party. In Davis v. Bandemer (1986) a majority of the Supreme Court...

Posted 03 Jun 2019 in Case Notes, Commentary, IMLA Briefs, Monday Morning Review

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must file charges with the Equal Employment Opportunity Commission (EEOC). In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely raised (but may be forfeited if not timely asserted). The State and Local Legal Center...

Posted 26 Mar 2019 in Case Notes, Commentary
The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional. Before argument court watchers were focused on Chief Justice Roberts, but during argument Justice Kavanaugh stole the show. In 1986 in Davis v. Bandemer six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination. Most recently, last term, with Justice Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. The two cases before the Court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively. By almost any measure the gerrymanders were unapologetic and extreme. Now that the Court has five solidly conservative members many have speculated that these Justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question. In oral argument last term Chief Justice Roberts, now the Court’s likely swing Justice, used the term “sociological gobbledygook” when expressing his skepticism about the Court being able to agree to a satisfactory test. Today, as is typical, the Chief asked questions of both side. For example, he questioned the merits of a test that assumes how people will vote based on past voting noting how often predictions of how people will vote are wrong. On the other hand, he acknowledged that the Maryland gerrymander “seems to be retaliation” and noted that the Supreme Court has an “established analysis” to deal with First Amendment retaliation claims.

Posted 19 Feb 2019 in Case Notes, IMLA Briefs
If a state or local government discharges a pollutant from a point source to a navigable water it must obtain a permit under the Clean Water Act (CWA). But what if that pollutant is conveyed in something—say groundwater—between the point source and the navigable water? Must the state or local government still obtain a permit? That is the question the Supreme Court will decide next term in County of Maui, Hawaii v. Hawaii Wildlife Fund. Maui County injects treated wastewater from wells into the groundwater. Some of the treated wastewater reaches the Pacific Ocean. The Hawaii Wildlife Fund sued the County arguing it was required to obtain a permit under the CWA for these discharges.

Posted 06 Nov 2018 in Case Notes, IMLA Briefs
In its first opinion of the term in Mt. Lemmon Fire District v. Guido the Supreme Court ruled 8-0 that the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) filed an amicus brief arguing that it should not apply. State and local governments often rely on small special districts to provide services they don’t provide. John Guido was 46 and Dennis Rankin was 54 when they were laid off by the Mount Lemmon Fire District. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. The fire district argued that the ADEA does not apply to it because it employs fewer than 20 people. The Ninth Circuit disagreed. The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.”

Posted 06 Sep 2018 in Case Notes
Herrera v. Wyoming is a case of dueling Supreme Court precedent. Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming. He was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land. In Herrera v. Wyoming the Supreme Court will decide whether Wyoming's admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in Big Horn National Forest. To decide this case the lower court applied a 1995 Tenth Circuit decision Crow Tribe of Indians v. Repsis, which raised the same question. In Repsis, the Tenth Circuit held that the “Tribe’s right to hunt . . .  was repealed by the act admitting Wyoming into the Union” and that “the creation of the Big Horn National Forest resulted in the ‘occupation’ of the land.”

Posted 22 Jun 2018 in Case Notes, Commentary

Last week, in a 7-2 decision in Minnesota Voters Alliance v. Mansky, the Supreme Court struck down Minnesota’s law barring “political apparel” from a polling place on Election Day because even in a nonpublic forum, “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.” Although Minnesota lost the case, the Court affirmed that States (and local governments) may validly exclude certain forms of advocacy, including passive advocacy like...

Posted 22 Jun 2018 in Case Notes, Commentary

In a 5-4 decision which resulted in 4 separate dissents, today, the Supreme Court held in Carpenter v. United States that the government conducts a search for the purposes of the Fourth Amendment when it obtains a cell phone user’s cell-site location information (CSLI) from a third party wireless provider. Although the Court explained the Orwellian implications of allowing the government to have “near perfect” retrospective surveillance of a user, “as if it had attached an ankle monitor to the...

Posted 21 Jun 2018 in Case Notes, Commentary

It is estimated that states and local governments lose between $8 and $33 billion dollars each year as a result of the Supreme Court’s “physical presence” requirement. In a huge win for state and local governments, today, the Supreme Court announced in a 5-4 opinion that the “physical presence rule” for the purpose of requiring out of state sellers to collect and remit sales tax is “unsound and incorrect,” has limited States’ and local governments’ “ability to seek long-term prosperity,”...