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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.

Posted 18 Apr 2016 in Case Notes, Commentary
It was a different crowd today at the Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish. United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government.  

Posted 13 Apr 2016 in Case Notes, Commentary
There is outright theft and then there is getting paid for doing the job but not following all the rules. The former may be the subject of a False Claims Act claim but what about the latter?  The Supreme Court will hear argument on that question next week.  The False Claims Act (FCA) allows private individuals to sue on behalf of the United States to recover money that has been defrauded from the federal government. While the Supreme Court has yet to rule whether states and local governments can bring FCA claims, local governments, but not state governments, can be sued for making false claims against the federal government.  

Posted 22 Mar 2016 in Case Notes, Commentary
In a per curiam (unauthored) opinion, which concurring Justices Alito and Thomas call “grudging,” the U.S. Supreme Court has ordered the Supreme Judicial Court of Massachusetts to decide again whether Massachusetts’s stun gun ban is constitutional. Currently eight states and a handful of cities and counties ban stun guns.  The highest state court in Massachusetts held that the Second Amendment doesn’t protect stun guns because they weren’t in common use at the time the Second Amendment was enacted, they are “unusual” as “a thoroughly modern invention,” and they aren’t readily adaptable for use in the military.