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Posted 04 Apr 2017 in Case Notes, Commentary
The Trump administration asked the Supreme Court to hold “in abeyance” litigation over whether a federal district court or a federal court of appeals has jurisdiction to rule whether the current 2015 Waters of the United States (WOTUS) definitional rule violates the Clean Water Act. On April 2, 2017 the Supreme Court denied the motion, allowing the litigation to proceed. President Trump’s February 28, 2017 executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule calls for the “rescinding or revising” of the WOTUS rule. Many state and local governments objected to the broad nature of this rule, in particular to the expansive definition of ditches and the ambiguous definition of tributaries. 

Posted 30 Mar 2017 in Case Notes, Commentary
While President Trump’s executive order (EO) on Promoting Energy Independence and Economic Growth merely calls for the “review” of the Clean Power Plan (CPP), it has been widely viewed as the President’s first step to dismantle President Obama’s signature climate change measure. The EO goes on to say that after review, the Environmental Protection Agency (EPA) “if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules.” According to the CPP, by 2030 carbon pollution from the power sector is supposed to be 32 percent below 2005 levels. State-by-state targets are to be accomplished by increased production of renewable energy. A number of states sued the Obama administration claiming the CPP regulations exceeded EPA’s authority under the Clean Air Act. In February 2016, the Supreme Court prevented the CPP regulations from going into effect until the D.C. Circuit Court of Appeals (and the Supreme Court, if it chooses to) rules on the regulations.

Posted 30 Mar 2017 in Case Notes, Commentary, IMLA Briefs
Expressions Hair Design v. Schneiderman is the Supreme Court’s first First Amendment free speech ruling since Reed v. Town of Gilbert, Arizona (2015), where the Supreme Court defined content-based speech very broadly and held it is subject to strict (usually fatal) scrutiny. The Court didn’t cite to Reed in its opinion in this newly decided case. The Court held unanimously that a New York statute prohibiting vendors from advertising a single price, and a statement that credit card customers must pay more, regulates speech under the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing this law doesn’t violate the First Amendment because it regulates conduct rather than speech. When customers pay with a credit card, merchants must pay a transaction fee to the credit card company. Some merchants want to pass this fee along to credit card customers. But a New York statute states that “[n]o seller in any sales transaction may impose a surcharge on a [credit card] holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” Twelve states have adopted credit-card surcharge bans.

Posted 27 Mar 2017 in Case Notes, Commentary, Monday Morning Review
The Supreme Court’s decision in Endrew F. v. Douglas County School District was bad timing for Supreme Court nominee Judge Neil Gorsuch. The Supreme Court held unanimously that public school districts must offer students with disabilities an individual education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court rejected the Tenth Circuit’s holding that an IEP must merely confer “some educational benefit” that is “more than de minimis.” This ruling came down while Judge Gorsuch was testifying before the Senate Judiciary Committee. Judge Gorsuch was the author of a 2008 opinion

Posted 09 Mar 2017 in Case Notes, Commentary
In  S. Dakota v. Wayfair, Inc., 2017 U.S. Dist. LEXIS 7669, a state trial court judge in South Dakota has ruled that a South Dakota law requiring remote sellers to collect sales tax is unconstitutional. This ruling was expected for precisely the reason the judge stated—a lower court must follow Supreme Court precedent.    In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. The South Dakota law directly contradicts this precedent.

Posted 06 Mar 2017 in Case Notes, Commentary, Monday Morning Review
The Supreme Court will not decide—at least not this term—whether transgender students have a right to use the bathroom consistent with their gender identity due to changes in position on this issue from the Obama to Trump administration. Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter the Department of Education (DOE) interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter. On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity. G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

Posted 23 Feb 2017 in Case Notes, Commentary
The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity. Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter, DOE interpreted the Title IX regulation to mean that if schools provide for separate boys' and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity. G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boys' bathroom. He sued the district arguing that it discriminated against him in violation of Title IX.

Posted 15 Feb 2017 in Case Notes, Commentary, IMLA Briefs
The Supreme Court accepts all kinds of cases involving states and local governments. Town of Chester v. Laroe Estates involves a long, complicated story and legal issue. Steven Sherman sued the Town of Chester alleging an unconstitutional taking as the town refused to approve a subdivision on plots of land Sherman intended to sell to Laroe Estates. Laroe Estates advanced Sherman money for the land in exchange for a mortgage on the property. Sherman defaulted on a loan to a senior mortgage holder who foreclosed on the property. Laroe Estates, claiming to be the owner of the property, sought to “intervene” in the takings lawsuit. The Federal Rules of Civil Procedure grant the right to intervene to non-parties who “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.”  The district court concluded that Laroe Estates lacked Article III “standing” under the U.S. Constitution to assert a takings claim against the Town. Laroe Estates argued that it was a “contract vendee” of the Sherman property. According to the district court, under longstanding circuit court precedent “contract vendees lack standing to assert a takings claim.” The question the Supreme Court will decide in Town of Chester v. Laroe Estates is whether Laroe Estates may intervene in this case even though it lacks standing.

Posted 13 Feb 2017 in Case Notes, Commentary
What if a police officer arrests someone because the officer doesn’t believe the person is telling the truth and there is evidence the officer is right?  In District of Columbia v. Wesby the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' claims of an innocent mental state.  Facts similar to those in this case may not arise very often. But police officers must assess claims of innocence in numerous other instances (theft, assault, even homicide).   Police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.  The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” The partygoers claimed they did not know they lacked permission to be in the house. 

Posted 31 Jan 2017 in Case Notes, IMLA Briefs
If the war to overturn Chevron v. NRDC (1984) is to be won, many battles will probably have to be won first.  While overturning Chevron is not on the table in Coventry Health Care of Missouri v. Nevils, limiting it is. The State and Local Legal Center (SLLC) asked the Court in its amicus brief to rule that Chevron deference does not apply when an agency is construing the scope of a statute’s preemption provision, absent Congress’s assent.    In Chevron v. NRDC the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.