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Posted 28 May 2015 in Case Notes, Commentary
The U.S. Constitution Equal Protection Clause’s “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The Supreme Court will decide these issues in Evenwel v. Abbott. While this case involves a state legislature redistricting it is equally applicable to a local government drawing boundaries for a local election. While local governments may prefer to decide for themselves (rather than have the Supreme Court tell them) what population metric is appropriate, they may disagree about the better metric.

Posted 26 May 2015 in Case Notes, Commentary
The Employee Retirement Income Security Act (ERISA) regulates private employer retirement plans and does not apply to state and local government retirement plans. Tibble v. Edison International is an ERISA case. Before you dismiss it, note that it is an ERISA fiduciary duty case. A lower court determining the precise nature of the fiduciary duty state and local governments owe employees under a state law similar to ERISA regulating public retirement plans may look to the Supreme Court’s opinion in this case. The Court held unanimously that employers have a continuing duty to monitor retirement investments and remove imprudent ones.  

Posted 14 May 2015 in Commentary
To bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. An undisputed element of standing is that the plaintiff has suffered an injury. But what if Congress allows plaintiffs who have suffered no concrete harm to sue based upon a mere violation of statute? The Supreme Court will decide whether such plaintiffs have Article III standing in Spokeo v. Robins. While the impact of this case on state and local governments may not be obvious, there are a finite number of statutes in which Congress has created a private right of action and a plaintiff may be unharmed by a violation of the statute. Most are consumer protection statutes like the Truth in Lending Act and the Telephone Consumer Protection Act, which don’t apply to state and local governments. But a few such statutes do apply—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA).

Posted 13 May 2015 in Commentary
As our country prepares for the upcoming brown out and black out season, the Supreme Court has accepted a case involving our nation’s electricity grid. Local governments who participate in demand response programs have a direct stake in the outcome of this case. The Supreme Court has agreed to decide whether FERC may regulate “demand response” payments offered to electric utility customers to reduce their electricity use during periods of high demand. State and local governments may save money through participating in demand response programs. But the Electric Power Supply Association argued, and the D.C. Circuit Court of Appeals agreed, that FERC’s Order 745 encroaches on states’ regulatory authority.

Posted 12 May 2015 in Commentary
If not all Supreme Court cases are equal, all employment law Supreme Court really cases aren’t equal. Green v. Donahoe isn’t Ledbetter v. Goodyear, holding employees have 180 days from a discriminatory pay decision to bring a claim, which Congress promptly overturned. Most employers won’t care how this case is decided. So, why did the Court take it? Likely to resolve a circuit split that has been brewing for the last 25 years. In Green v. Donahoe the Supreme Court will decide for purposes of federal employment discrimination law when the filing period for a constructive discharge claim begins to run. The Court’s choices are:  when an employee resigns or the employer's last allegedly discriminatory act. Often these two events occur at the same time, but not in this case. This case will apply to constructive discharge claims brought against state and local government employers under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court. 

Posted 28 Apr 2015 in Case Notes, Commentary
Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage. His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage:  for millennia (not years, decades, or even centuries) marriage has been between a man and a women. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway?

Posted 21 Apr 2015 in Case Notes, Commentary
In a 6-3 decision issued this morning in Rodriguez v. United States, the Supreme Court held that a dog sniff conducted after a completed traffic stop violates the Fourth Amendment.  In a dissent, Justice Alito describes the Court’s holding as “unnecessary, impractical, and arbitrary” and suggests savvy officers can skirt it. Officer Struble pulled over Dennys Rodriguez after he veered onto the shoulder of the highway and jerked back on the road. Officer Struble ran a records check on Rodriguez, then questioned his passenger and ran a records check on the passenger and called for backup, and next wrote Rodriguez a warning ticket. Seven or eight minutes passed between Officer Struble issuing the warning, back up arriving, and Officer Struble’s drug-sniffing dog alerting for drugs.  Rodriguez argued that prolonging the completed traffic stop without reasonable suspicion in order to conduct the dog sniff violated the Fourth Amendment.

Posted 02 Apr 2015 in Case Notes, Commentary
Beginning in the mid-2000s numerous states adopted “Jessica’s” laws requiring GPS monitoring of certain sex offenders.  These statutes have been challenged on a number of grounds—including that they violate the Fourth Amendment’s prohibition against unreasonable searches.  Eight states, including North Carolina, monitor sex offenders for life. The Supreme Court ruling that GPS monitoring of certain sex offenders is a Fourth Amendment search doesn’t invalidate these statutes.  But if the lower court—and ultimately the Supreme Court—rule GPS monitoring is an unreasonable Fourth Amendment search—state statutes nationwide could be unconstitutional.

Posted 30 Mar 2015 in Case Notes, Commentary
Young v. United Parcel Service presents a dilemma most employers, including states, can relate to.  What should an employer do if a pregnant employee’s job requires that she lift an amount well above what her doctor has approved during pregnancy? The specific issue the Court had to decide in this case was whether an employer violated Title VII because it accommodated many but not all nonpregnancy-related disabilities but did not accommodate pregnancy-related disabilities.  Maybe, the Supreme Court ruled in a 6-3 decision.

Posted 26 Mar 2015 in Case Notes, Commentary
In the only SCOTUS case of the term where the issue of race is front and center (other than high profile Fair Housing Act case) the Court sided with minority voters. Unsurprisingly, Justice Kennedy joined the majority opinion. In Alabama Legislative Black Caucus v. Alabama the Supreme Court held 5-4 that when determining whether unconstitutional racial gerrymandering occurred—if race was a “predominant motivating factor” in creating districts—one-person-one-vote should be a background factor, not a factor balanced against the use of race.  And Section 5 of the Voting Rights Act (VRA) does not require a covered jurisdiction to maintain a particular percent of minority voters in minority-majority districts.  The Court sent this case back to the lower court to reconsider in light of its opinion.  While this case involves state legislative redistricting, the legal standards at issue apply to redistricting at the local level as well.