Commentary

Home > Commentary (Page 9)

Posted 09 Mar 2017 in Case Notes, Commentary
In  S. Dakota v. Wayfair, Inc., 2017 U.S. Dist. LEXIS 7669, a state trial court judge in South Dakota has ruled that a South Dakota law requiring remote sellers to collect sales tax is unconstitutional. This ruling was expected for precisely the reason the judge stated—a lower court must follow Supreme Court precedent.    In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. The South Dakota law directly contradicts this precedent.

Posted 06 Mar 2017 in Case Notes, Commentary, Monday Morning Review
The Supreme Court will not decide—at least not this term—whether transgender students have a right to use the bathroom consistent with their gender identity due to changes in position on this issue from the Obama to Trump administration. Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter the Department of Education (DOE) interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter. On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity. G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

Posted 23 Feb 2017 in Case Notes, Commentary
The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity. Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter, DOE interpreted the Title IX regulation to mean that if schools provide for separate boys' and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity. G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boys' bathroom. He sued the district arguing that it discriminated against him in violation of Title IX.

Posted 15 Feb 2017 in Case Notes, Commentary, IMLA Briefs
The Supreme Court accepts all kinds of cases involving states and local governments. Town of Chester v. Laroe Estates involves a long, complicated story and legal issue. Steven Sherman sued the Town of Chester alleging an unconstitutional taking as the town refused to approve a subdivision on plots of land Sherman intended to sell to Laroe Estates. Laroe Estates advanced Sherman money for the land in exchange for a mortgage on the property. Sherman defaulted on a loan to a senior mortgage holder who foreclosed on the property. Laroe Estates, claiming to be the owner of the property, sought to “intervene” in the takings lawsuit. The Federal Rules of Civil Procedure grant the right to intervene to non-parties who “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.”  The district court concluded that Laroe Estates lacked Article III “standing” under the U.S. Constitution to assert a takings claim against the Town. Laroe Estates argued that it was a “contract vendee” of the Sherman property. According to the district court, under longstanding circuit court precedent “contract vendees lack standing to assert a takings claim.” The question the Supreme Court will decide in Town of Chester v. Laroe Estates is whether Laroe Estates may intervene in this case even though it lacks standing.

Posted 13 Feb 2017 in Case Notes, Commentary
What if a police officer arrests someone because the officer doesn’t believe the person is telling the truth and there is evidence the officer is right?  In District of Columbia v. Wesby the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' claims of an innocent mental state.  Facts similar to those in this case may not arise very often. But police officers must assess claims of innocence in numerous other instances (theft, assault, even homicide).   Police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.  The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” The partygoers claimed they did not know they lacked permission to be in the house. 

Posted 10 Feb 2017 in Commentary

On February 9 the Ninth Circuit refused to stay a district court’s temporary restraining order disallowing the President’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

 Washington and Minnesota sued President Trump claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. The residents of cities and counties and their families have been affected as well by this executive order.  The government argued that the President has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed stating: “There is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.”   The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.”

Posted 31 Jan 2017 in Commentary
The authors of Searching for Scalia evaluated who on President Trump’s list of potential nominees to replace Justice Scalia’s seat on the Supreme Court would be most like Justice Scalia—the originalist, the textualist, and, most importantly, the conservative. The winner:  Supreme Court nominee Judge Neil Gorsuch! While just one case is too few to judge any Supreme Court nominee, one case in particular gives states and local governments a reason to be excited about this nomination. Last year Judge Gorsuch (strongly) implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. While Judge Gorsuch hasn’t ruled on abortion (an issue states care about) his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to states and local governments. Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ—agency deference—the views of states and local governments are generally more in-line with Judge Gorsuch’s view.

Posted 03 Jan 2017 in Commentary, IMLA Briefs
Is a Price Speech? Expressions Hair Design v. Schneiderman, like most First Amendment cases, is about much more than its mere facts, here disallowing retailers to pass on credit-card swipe fees to consumers. It raises a more fundamental question over what exactly is speech. The question the Supreme Court will decide in this case is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violate the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues these laws don’t violate the First Amendment because they regulate conduct rather than speech.

Posted 07 Dec 2016 in Case Notes, Commentary
It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez. (Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.) In Los Angeles County v. Mendez the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

Posted 22 Nov 2016 in Case Notes, Commentary, IMLA Briefs
In Crutchfield v. Testa the Ohio Supreme Court held that Ohio’s commercial activity tax (CAT) applies to online vendors even if they lack a physical presence in the state. More technically, the court refused to extend the U.S. Supreme Court’s holding in Quill Corp. v. North Dakota (1992), that states cannot require retailers with no in-state physical presence to collect sales tax, to Ohio’s privilege-of-doing-business tax. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of this result.