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Posted 27 Jun 2017 in Case Notes, Commentary, IMLA Briefs

Good news for local governments with "merger" ordinances: you can keep them on the books.

　It has been a number of years since states and local governments have won a property rights case. But in Murr v. Wisconsin the Supreme Court concluded 5-3 that no taking occurred where state law and local ordinances "merged" nonconforming, adjacent lots under common ownership, meaning the property owners could not sell one of the lots by itself. The State and Local Legal Center (SLLC), filed an amicus brief, which the Court cited two times, arguing that these very common provisions are constitutional.　

　The Murrs owned contiguous lots E and F, which together are .98 acres. Lot F contained a cabin and lot E was undeveloped. State law and a St. Croix County merger ordinance prohibit the individual development or sale of adjacent lots under common ownership that are less than one acre total. A grandfather clause allows for the sale and development of separately owned substandard lots purchased before the statute and ordinance went into effect.

     The Murrs sought and were denied a variance to sell Lot E to finance moving the cabin on Lot F. They claimed the ordinance resulted in an unconstitutional uncompensated taking.

Posted 26 Jun 2017 in Case Notes, Commentary
On its last opinion day of the term, the Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban. In the meantime, to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the United States, it may go into effect until the Supreme Court rules on the merits of this case. The president’s first executive order prevented people from seven predominantly Muslim countries from entering the United States for 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017. The Ninth Circuit temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders, and refugees. The president’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers, and contains the same provisions regarding refugees as the original travel ban. The Fourth Circuit concluded the revised travel ban likely violates the Establishment Clause, noting that its “text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination.” It temporarily prevented the portion of the executive order regarding admission to the United States for 90 days from going into effect. The Ninth Circuit concluded that the revised travel ban likely exceeds the power granted to the President by Congress in the Immigration and Nationality Act. It temporarily prevented all of the provisions mentioned above from going into effect, including those affecting refugees.

Posted 23 Jun 2017 in Case Notes
Local governments don’t particularly care that trademarks aren’t government speech. But they do care about the breadth of the government speech doctrine because government speech is not protected by the First Amendment (meaning governments can say what they want and exclude messages they disagree with). In Matal v. Tam Justice Alito, writing for the majority, noted that Walker v. Texas (2005) “likely marks the outer bounds of the government-speech doctrine.” In Walker the Court held that messages on specialty license plates are government speech. Section 2(a) of the Lanham Act bars the Patent and Trademark Office (PTO) from registering marks that disparage persons and institutions. Simon Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. The PTO refused to register the band name concluding a “substantial composite of people” would find it offensive. Tam sued the PTO arguing that Section 2(a) violates the First Amendment Free Speech Clause. Among other arguments, the Supreme Court rejected the federal government’s claim that trademarks are government speech or a form of government subsidy. In rejecting the argument that trademarks are government speech, the Court noted that none of the factors present in Walker are present in this case. Specifically, license plates have long been used to convey state messages; are closely identified with the state as they are manufactured, owned, and generally designed by the state; and Texas directly controlled the messages conveyed on specialty plates.

Posted 20 Jun 2017 in Case Notes, IMLA Briefs
In Packingham v. North Carolina the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result. Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed. This case may not see particularly relevant to local governments. But, if a statute (or ordinance) limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles. The Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny. So, practically speaking, the Supreme Court didn’t expand or clarify the definition of content-based in Packingham.  

Posted 19 Jun 2017 in Case Notes, Commentary, Monday Morning Review
In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional. While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional. In 2004, Justice Anthony M. Kennedy – who may be the deciding vote in Whitford – wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional. In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans. The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process. Drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers, the standard is based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap.

Posted 02 Jun 2017 in Case Notes, Commentary
The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local governments supported the challengers.  The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.  The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers. 

Posted 30 May 2017 in Case Notes, IMLA Briefs
No matter the legal issue, excessive forces cases are difficult for state and local governments to win because they often involve injury or death (in this case of a totally innocent person). To win one unanimously likely says something about the problematic nature of the legal theory. In County of Los Angeles v. Mendez the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The State and Local Legal Center (SLLC) filed an amicus brief asking the Supreme Court to reject the Ninth Circuit’s provocation rule. Police officers entered the shack Mendez was living in without a warrant and unannounced. Mendez thought the officers were the property owner and picked up the BB gun he used to shoot rats so he could stand up. When the officers saw the gun, they shot him resulting in his leg being amputated below the knee. The Ninth Circuit concluded that the use of force in this case was reasonable. But it concluded the officers were liable per the provocation rule--the officers brought about the shooting by entering the shack without a warrant. (The Ninth Circuit granted the officers qualified immunity for failing to knock-and-announce themselves.) The Ninth Circuit also concluded that provocation rule aside, the officers were liable for causing the shooting because it was “reasonably foreseeable” that the officers would encounter an armed homeowner when they “barged into the shack unannounced.” 

Posted 23 May 2017 in Case Notes, Commentary
North Carolina has had a tough time in the Supreme Court in the last two weeks. Last week the Court refused to review the 4th U.S. Circuit Court of Appeal's decision holding that North Carolina’s voter ID law is unconstitutional and violates the Voting Rights Act. This week it concluded two congressional districts are unconstitutional racial gerrymanders. Cooper v. Harris raises an issue litigated over and over since the 2010 census. Challengers claim the North Carolina legislature unconstitutionally packed minority voters into a few legislative districts to lessen their ability to influence races in other districts. The Supreme Court agreed, holding 5-3 that a North Carolina District Court correctly ruled that North Carolina relied too heavily on race in designing two majority-minority congressional districts.

Posted 11 May 2017 in Case Notes, Commentary, IMLA Briefs
The glass is more than half full after the Supreme Court’s ruling in Bank of America v. Miami , but not as full as local governments would like. The Supreme Court could have completely shut down local government lawsuits against banks for discriminatory lending practices—but it didn’t. The Supreme Court also could have made it easier for local governments to prove these cases—but it didn’t. In Bank of America v. Miami , the Supreme Court held 5-3 that local governments have “standing” to bring Fair Housing Act (FHA) lawsuits against banks alleging discriminatory lending practices. But to win these claims local governments must show that their injuries were more than merely foreseeable. The State and Local Legal Center (SLLC) filed an amicus brief in this case on the side of the City of Miami.   

Posted 05 Apr 2017 in Case Notes, Commentary
The Seventh Circuit has become the first federal circuit court of appeals to rule that employees may bring sexual orientation discrimination claims under Title VII. This case directly affects state and local governments in their capacity as employers in Indiana, Illinois, and Wisconsin. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex, or national origin.” Kimberly Hively is openly lesbian. She sued Ivy Tech Community College where she taught as a part-time, adjunct professor. She applied for at least six full-time positions between 2009 and 2014, didn’t receive any of them, and in July 2014, her part-time contract was not renewed. She believes her sexual orientation is the reason. The Seventh Circuit had long held that sexual orientation discrimination claims weren’t cognizable under Title VII. The court decided to revisit this conclusion “in light of developments at the Supreme Court extending over two decades.” These decisions include Obergefell v. Hodges (2015), which granted same-sex couples a constitutional right to marry.