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Posted 17 Nov 2014 in Case Notes, Commentary

Last Friday the Supreme Court’s docket went from boring to big with the grant of just one case:  King v. Burwell.  The issue in this case is whether tax credits for low and middle income health insurance purchasers are available under the Affordable Care Act (ACA) if insurance is purchased on a federal exchange rather than a state exchange.  Only 16 states and the District of Columbia have established exchanges.  The ACA makes tax credits available to those who buy health...

Posted 20 Oct 2014 in Commentary
Interpretive and substantive rules.   What is the difference?SupremeCourt2  Under the Administrative Procedures Act (APA) substantive regulations interpret statutes and federal agencies adopt them only after notice-and-comment.  Interpretive rules and are promulgated without-notice and-comment.  But what if an agency changes an interpretive rule;   should it first seek notice and comment?  The Supreme Court will decide this issue in Perez v. Mortgage Bankers Association. The State and Local Legal Center (SLLC) argues yes in its amicus brief, which agrees with the lower court that significant changes to an interpretation of a regulation amounts to effectively changing the regulation, which requires notice-and-comment.  Local governments frequently have been surprised by interpretive rules that have changed regulations.  IMLA joined the SLLC’s brief.

Posted 09 Oct 2014 in Commentary
For the six reasons Lyle Denniston describes on SCOTUSblog, the Supreme Court’s announcement on Monday that it would not hear any of the seven petitions striking down same-sex marriage bans was stunning.5554035521_f6b59ccafa_n  Even though there was no circuit split, conventional wisdom indicated the Court would decide the issue because of its importance and because both sides asked the Court for review. Amy Howe also of SCOTUSblog and Scott Michelman writing on SCOTUSblog speculate as to the why the Court’s liberals and conservatives may have decided not to get involved in the issue now.  In short, the liberals had nothing to lose by waiting, and both side face uncertainty about Justice Kennedy’s position on the issue. To understand where were are today with same-sex marriage a timetable is helpful.
  • On Sunday, 19 states recognized same-sex marriage.
  • On Monday, 11 more states were added from the Fourth (Virginia, West Virginia, North Carolina, and South Carolina) Seventh (Wisconsin and Indiana) and Tenth Circuits (Utah, Oklahoma, Colorado, Kansas, and Wyoming).
  • On Tuesday 5 more states were added when the Ninth Circuit (Idaho, Nevada, Alaska, Arizona, and Montana) struck down the Idaho and Nevada same-sex marriage bans.  (Implementation of this decision is still being worked out).
Technically,

Posted 16 Sep 2014 in Case Notes, Commentary
While the Supreme Court’s next term officially begins on October 6, its “long conference” is September 29.  At this conference the Court will review a backlog of petitions that have been piling up over the summer.  SCOTUSblog complies a list of petitions that it thinks have a reasonable chance of being granted.  Eight of the petitions the Court will consider either during the “long conference” or at a later conference directly involve or impact local governments.5554035521_f6b59ccafa_n Public nuisance.  A Brighton, Michigan, ordinance presumes that an unsafe structure will be demolished as a public nuisance if the cost of repairing it exceeds its value.  The owner has no right to repair the structure.  Brighton property owners wanted to repair two unsafe structures even though Brighton estimated it would cost almost double the property value do so.  In Bonner v. City of Brighton, Michigan, the property owners claim the ordinance violates substantive and procedural due process. Employment.  Under federal employment law to bring a discrimination claim a plaintiff must prove that an “adverse action” occurred, and to bring a retaliation claim a plaintiff must prove a “materially adverse action” occurred.  The question in Kalamazoo County Road Commission v. Deleon is whether either can be proven when an employer grants an employee’s request for a job transfer (and the new position turns out to be less desirable than the old position).  The International Municipal Lawyers Association (IMLA) filed an amicus brief in this case.

Posted 26 Aug 2014 in Case Notes, Commentary
Even though the Supreme Court’s next term won’t officially begin until October 6, the Court has already accepted about 40 of the 70 or so cases it will decide in the upcoming months. For a more detailed summary of all the cases the Court has accepted so far affecting local government, read the State and Local Legal Center’s Supreme Court Preview for Local Governments.Supreme Court3 Here is a quick highlight of what is on the Court’s docket right now that will affect local government:

Posted 21 Jul 2014 in Commentary, Tips and Tactics
Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other.Gavel  On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court.  In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts.

Posted 21 Jul 2014 in Commentary
Supreme Court cases are usually known for what they hold.5554035521_f6b59ccafa_n  Harris v. Quinn will forever be known for what it did not hold.  The Court did not overrule Abood v. Detroit Board of Education, a 35-year old precedent that is a cornerstone of public sector collective bargaining.  But it certainly foreshadowed its demise. In Harris v. Quinn the Supreme Court held 5-4 that the First Amendment prohibits the collection of an agency fee from home health care providers who do not wish to join or support a union. 

Posted 08 Jul 2014 in Commentary
Litigation offers attorneys many opportunities to choose how they will behave and what they will say. youre it The best course is to take the high road at every opportunity.  Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress.  A small meanness may be reciprocated, then followed by an escalation and tit for tat.  Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case. All attorneys are held to a high standard by the law and the rules of professionalism and civility.

Posted 26 Jun 2014 in Commentary
Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. paperThey would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism.  In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975). Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure.

Posted 20 Jun 2014 in Case Notes, Commentary
The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.5554035521_f6b59ccafa_n The good:  The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor. The bad:  The Court read “official job duties” narrowly to exclude speech about information merely learned at the job. The ugly:  The Court doesn’t decide the obvious next question:  is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment?