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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.  

Posted 17 Mar 2015 in Case Notes, Commentary, IMLA Briefs
In 2006 the Department of Labor (DOL) stated in an opinion letter that mortgage loan officers were eligible for overtime but then changed its mind in 2010 in an “Administrator’s Interpretation.” In Perez v. Mortgage Bankers Association the Supreme Court held unanimously that federal agencies do not have to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before changing an interpretive rule, like the 2006 opinion letter in this case.  The Court overturned a nearly 20 year-old precedent from the D.C. Circuit, Paralyzed Veterans of America v. D.C. Arena, which the State and Local Legal Center (SLLC) argued in an amicus brief that the Court should affirm.  Paralyzed Veterans held that an agency must use APA notice-and-comment when significantly altering an interpretive rule that interprets a legislative rule. 

Posted 13 Mar 2015 in Case Notes, Commentary, IMLA Briefs
In Alabama Department of Revenue v. CSX Transportation the Supreme Court held 7-2 that railroads can be compared to their competitors when determining whether a tax is discriminatory in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act).  Different taxes paid by railroads and their competitors must be compared with determining whether a tax railroads pay is discriminatory.  The State and Local Legal Center (SLLC) filed an amicus brief in this case disagreeing with the Court’s first holding and agreeing with its second holding. The 4-R Act prohibits state and local governments from imposing taxes that discriminate against rail carriers (railroads).  Railroads in Alabama pay a four percent sales tax on diesel fuel as do other commercial and industrial purchasers.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  Water carriers pay no sales or excise tax on diesel fuel. 

Posted 10 Mar 2015 in Commentary, IMLA Briefs
There is no way to know for sure why Justice Kennedy wrote a concurring opinion in Direct Marketing Association v. Brohl stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”  But even if you don’t read the State and Local Legal Center (SLLC) amicus brief’s criticism of Quill and merely scan its table of authorities, you will notice that two of the three non-case related citations in Justice Kennedy’s opinion come from the SLLC’s brief.

Posted 04 Mar 2015 in Case Notes, Commentary
For Justice Kennedy it was his questions, for Chief Justice Roberts it was his silence… Today the Supreme Court heard oral argument in King v. Burwell, where it will decide whether federal health insurance exchanges, operating in 34 states, can offer subsidies to middle and low income purchasers of insurance under the Affordable Care Act (ACA). Simply put, the Court must decide whether it agrees with the Internal Revenue Service (IRS) that the following statutory language, “established by the State,” can include federal exchanges too. All eyes and ears were on Justice Kennedy and Chief Justice Roberts during the argument.  Justice Kennedy is the Court’s “swing” Justice, and Chief Justice Roberts crucially concluded in the first Supreme Court challenge to the ACA that the individual mandate is a constitutional “tax.” 

Posted 17 Feb 2015 in Commentary, Roundup
The Supreme Court’s 2014-2015 docket is now complete.  While the same-sex marriage and Affordable Care Act cases will receive the most attention, the docket is chalked full of cases significant to local government.  The State and Local Legal Center’s (SLLC) Midterm Review article summarizes all the cases accepted and already decided that will affect local government.  Expect decisions in all the cases by the end of June.  If you are interested in these cases and others register here for the SLLC's FREE Supreme Court Midterm Review webinar held on March 5. Here are some highlights: Reed v. Town of Gilbert, Arizona and Sheehan v. City & County of San Francisco are probably the most significant cases of the term for local government.  Depending on how the Court rules, both could impact every city and county in the United States.  The issue in Reed is whether sign codes may treat some categories of temporary signs more favorably than others.  If the Court holds they cannot, virtually all local governments will have to rewrite their sign codes.  In Sheehan the Court will decide whether the Americans with Disabilities Act applies to arresting a mentally ill suspect who is armed and violent.