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Posted 22 Jun 2016 in Commentary, IMLA Briefs
Whoever thought up merger probably long ago gave up worrying if it was unconstitutional, if they even ever thought about it. But now that person (and numerous cities, counties, and states) have reason to worry. In Murr v. Wisconsin the Supreme Court will decide whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property. The State and Local Legal Center (SLLC) filed an amicus brief arguing that these very common provisions are constitutional. 

Posted 15 Jun 2016 in Case Notes, Commentary
In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died. There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school.

Posted 13 Jun 2016 in Case Notes, Commentary
It is hard to keep quiet when you have a secret big enough that ABC’s 20/20 is interested in interviewing you. But if you talk too soon will the lawsuit your secret culminates in be dismissed? The False Claims Act (FCA) allows third parties to sue on behalf of the United States for fraud committed against the United States. Per the Act a FCA complaint is kept secret “under seal” until the United States can review it and decide whether it wants to participate in the case. In Rigsby v. State Farm the Supreme Court will decide what standard applies when deciding whether to dismiss a case because of a seal violation. Some federal circuits dismiss all cases.

Posted 03 Jun 2016 in Case Notes, Commentary
Per federal employment discrimination laws timelines are short and decisive. If an employee misses a deadline his or her case is over. If such timelines aren’t forgiving the Supreme Court is in Green v. Brennan. The Court chose a deadline for constructive discharge cases, where an employee feels compelled to quit due to intolerable working conditions, more favorable to employees.

Posted 17 May 2016 in Case Notes, Commentary
Spokeo v. Robins is both esoteric and important. Like a lot of Supreme Court opinions these days it seems like a compromise that will just increase confusion. In short, the scope of liability for state and local governments under a number of federal statutes remains uncertain. The Court sent the case, involving whether Thomas Robins may sue a search engine under the Fair Credit Reporting Act (FCRA) for providing inaccurate information about him, back to the lower court to determine whether Robins suffered a “concrete” harm and therefore had “standing” to sue. While this case does not sound relevant to state and local government it is. A number of federal statutes applicable to state and local government—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA)—allow plaintiffs to sue even if they have not necessarily been harmed. Regardless, to bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. Injury-in-fact—including a concrete harm—is one of the requirements for “standing.” 

Posted 16 May 2016 in Commentary
The Supreme Court’s unanimous decision in Zubik v. Burwell reads like a settlement agreement. It is likely a compromise influenced at least partially by Justice Scalia’s death. Is the agreement the Court brokered enough to keep this issue out of the Supreme Court again or will the devil be in the details? Only time will tell and by then the Court will (probably) have nine Justices again.  Zubik v. Burwell, involving religious nonprofit objections to providing notice objecting to the Affordable Care Act’s (ACA) birth control mandate, does not directly affect state and local government. But it is one piece of a litigation puzzle over this law; most of the puzzle pieces do affect state and local government. In a three-page unauthored opinion the Court did not rule on the merits of the case leaving the lower courts to “resolve any outstanding issues.”

Posted 09 May 2016 in Commentary
Former Virginia Governor Bob McDonnell has put forward his best case that a lower court has adopted an overly broad definition of “official acts” in federal bribery statutes. Will the Supreme Court agree? 

Posted 21 Apr 2016 in Case Notes, Commentary
In a (barely) 11 page opinion the Supreme Court did what three lower court judges could not do in three separate opinions: agree  In Harris v. Arizona Independent Redistricting Commission the Supreme Court confirms that state and local governments don’t have to apportion legislative districts perfectly, but they do need a good reason for failing to doing so. But we knew that before.  The Court held unanimously that Arizona’s redistricting plan, which had a total population deviation among districts of 8.8 percent, wasn’t unconstitutional. Those attacking the plan failed to show it is more probable than not that the deviation reflects illegitimate reapportionment considerations.