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Posted 03 Jun 2019 in Case Notes, Commentary, IMLA Briefs, Monday Morning Review

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must file charges with the Equal Employment Opportunity Commission (EEOC). In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely raised (but may be forfeited if not timely asserted). The State and Local Legal Center...

Posted 19 Feb 2019 in Case Notes, IMLA Briefs
If a state or local government discharges a pollutant from a point source to a navigable water it must obtain a permit under the Clean Water Act (CWA). But what if that pollutant is conveyed in something—say groundwater—between the point source and the navigable water? Must the state or local government still obtain a permit? That is the question the Supreme Court will decide next term in County of Maui, Hawaii v. Hawaii Wildlife Fund. Maui County injects treated wastewater from wells into the groundwater. Some of the treated wastewater reaches the Pacific Ocean. The Hawaii Wildlife Fund sued the County arguing it was required to obtain a permit under the CWA for these discharges.

Posted 06 Nov 2018 in Case Notes, IMLA Briefs
In its first opinion of the term in Mt. Lemmon Fire District v. Guido the Supreme Court ruled 8-0 that the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. The State and Local Legal Center (SLLC) filed an amicus brief arguing that it should not apply. State and local governments often rely on small special districts to provide services they don’t provide. John Guido was 46 and Dennis Rankin was 54 when they were laid off by the Mount Lemmon Fire District. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. The fire district argued that the ADEA does not apply to it because it employs fewer than 20 people. The Ninth Circuit disagreed. The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.”

Posted 21 Jun 2018 in Case Notes, Commentary, IMLA Briefs
In South Dakota v. Wayfair the Supreme Court ruled that states and local governments can require vendors with no physical presence in the state to collect sales tax. According to the Court, in a 5-4 decision, “economic and virtual contacts” are enough to create a “substantial nexus” with the state allowing the state to require collection. In 1967 in National Bellas Hess  v. Department of Revenue of Illinois, the Supreme Court held that per its Commerce Clause jurisprudence, states and local governments cannot require businesses to collect sales tax unless the business has a physical presence in the state. Twenty-five years later in Quill v. North Dakota (1992), the Supreme Court reaffirmed the physical presence requirement but admitted that “contemporary Commerce Clause jurisprudence might not dictate the same result” as the Court had reached in Bellas Hess. Customers buying from remote sellers still owe sales tax but they rarely pay it when the remote seller does not collect it. Congress had the authority to overrule Bellas Hess and Quill, but never did so.

Posted 09 Oct 2017 in Case Notes, Commentary, IMLA Briefs, Monday Morning Review
South Dakota has filed a petition in South Dakota v. Wayfair asking the U.S. Supreme Court to hear a challenge to its law requiring out-of-state retailers to collect sales tax. In Quill Corp. v. North Dakota (1992), the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In March 2015, Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” Justice Kennedy criticized Quill in Direct Marketing Association v. Brohl for many of the same reasons the State and Local Legal Center stated in its amicus brief. Specifically, internet sales have risen astronomically since 1992 and states and local governments are unable to collect most taxes due on sales from out-of-state vendors. Following the Kennedy opinion a number of state legislatures passed legislation requiring remote vendors to collect sales tax. South Dakota’s law is the first to be ready for review by the U.S. Supreme Court. In September the South Dakota Supreme Court ruled that the South Dakota law is unconstitutional because it clearly violates Quill and it is up to the U.S. Supreme Court to overrule it. 

Posted 21 Aug 2017 in Case Notes, Commentary, IMLA Briefs, Monday Morning Review
Federalism cases raise legal issues big and small, pedestrian and esoteric. The very simple question in Artis v. District of Columbia is what does it mean for a statute of limitations to “toll” under 28 U.S.C 1367(d)? The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief agreeing with the District of Columbia’s interpretation of “toll.” A year after the fact, Stephanie Artis sued the District of Columbia in federal court bringing a number of federal and state law claims related to her termination as a code inspector. It took the federal district court over two and a half years to rule on her claims. It dismissed her sole federal claim as “facially deficient” and no longer had jurisdiction to decide the state law claims. 28 U.S.C 1367(d) states that statutes of limitations for state law claims pending in federal court shall be “tolled” for a period of 30 days after they are dismissed (unless state law provides a longer tolling period). While Artis was waiting for the federal district court to rule, the three-year statutes of limitations on all her state law claims passed. She waited 59 days to re-file her claims in state court after the federal district court dismissed her case. Was her claim timely? The District of Columbia Court of Appeals held no.  

Posted 17 Aug 2017 in Case Notes, Commentary, IMLA Briefs

Maintaining accurate voter rolls means walking a fine line.

 In Husted v. A. Philip Randolph Institute the Supreme Court will decide whether federal law allows states and local governments to remove people from the voter rolls if the state or local government sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years.  While Ohio is being sued in this case, twelve other states use a similar process. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Ohio.  The National Voter Registration Act (NVRA) says that roll maintenance procedures “shall not result in” people being removed from the polls for failure to vote. The Help America Vote Act modified the NVRA to say that states may remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles.

Posted 27 Jun 2017 in Case Notes, Commentary, IMLA Briefs

Good news for local governments with "merger" ordinances: you can keep them on the books.

　It has been a number of years since states and local governments have won a property rights case. But in Murr v. Wisconsin the Supreme Court concluded 5-3 that no taking occurred where state law and local ordinances "merged" nonconforming, adjacent lots under common ownership, meaning the property owners could not sell one of the lots by itself. The State and Local Legal Center (SLLC), filed an amicus brief, which the Court cited two times, arguing that these very common provisions are constitutional.　

　The Murrs owned contiguous lots E and F, which together are .98 acres. Lot F contained a cabin and lot E was undeveloped. State law and a St. Croix County merger ordinance prohibit the individual development or sale of adjacent lots under common ownership that are less than one acre total. A grandfather clause allows for the sale and development of separately owned substandard lots purchased before the statute and ordinance went into effect.

     The Murrs sought and were denied a variance to sell Lot E to finance moving the cabin on Lot F. They claimed the ordinance resulted in an unconstitutional uncompensated taking.

Posted 20 Jun 2017 in Case Notes, IMLA Briefs
In Packingham v. North Carolina the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result. Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed. This case may not see particularly relevant to local governments. But, if a statute (or ordinance) limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles. The Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny. So, practically speaking, the Supreme Court didn’t expand or clarify the definition of content-based in Packingham.  

Posted 30 May 2017 in Case Notes, IMLA Briefs
No matter the legal issue, excessive forces cases are difficult for state and local governments to win because they often involve injury or death (in this case of a totally innocent person). To win one unanimously likely says something about the problematic nature of the legal theory. In County of Los Angeles v. Mendez the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The State and Local Legal Center (SLLC) filed an amicus brief asking the Supreme Court to reject the Ninth Circuit’s provocation rule. Police officers entered the shack Mendez was living in without a warrant and unannounced. Mendez thought the officers were the property owner and picked up the BB gun he used to shoot rats so he could stand up. When the officers saw the gun, they shot him resulting in his leg being amputated below the knee. The Ninth Circuit concluded that the use of force in this case was reasonable. But it concluded the officers were liable per the provocation rule--the officers brought about the shooting by entering the shack without a warrant. (The Ninth Circuit granted the officers qualified immunity for failing to knock-and-announce themselves.) The Ninth Circuit also concluded that provocation rule aside, the officers were liable for causing the shooting because it was “reasonably foreseeable” that the officers would encounter an armed homeowner when they “barged into the shack unannounced.”