Local Government Legal Center

History and Mission

The Local Government Legal Center (LGLC) is a coalition of national local government organizations formed in 2023 to provide education to local governments regarding the Supreme Court and its impact on local governments and local officials and to advocate for local government positions at the Supreme Court in appropriate cases.

The LGLC’s mission is to raise awareness of the importance of Supreme Court cases to local governments and to help shape the outcome of cases of significance to local governments at the Supreme Court through persuasive and effective advocacy. In appropriate cases, the LGLC will provide a strong and unified voice to the Supreme Court regarding local government issues and help educate the Supreme Court in cases involving issues that impact local governments.  The LGLC will serve as a resource to local governments and local government officials on issues related to the Supreme Court.

Founding Members

National Association of Counties

The National Association of Counties (NACo) is a founding member of the LGLC.  Matt Chase, NACo’s Executive Director, explained:

“As the national voice of America’s county governments, the National Association of Counties is proud to partner with NLC and IMLA to ensure the priorities and viewpoints of local officials are represented before our nation’s highest court. As the U.S. Supreme Court addresses some of the most complex public policy issues of the day, it is essential that  our county officials are aware of the Supreme Court’s docket and offer our perspectives on the practical, frontline realities on county-related legal issues.”

To learn more about NACo, click here: https://www.naco.org/

National League of Cities

The National League of Cities (NLC) is a founding member of the LGLC.  Clarence Anthony, NLC’s CEO and Executive Director, stated:

“The National League of Cities places a strong value in our legal advocacy program, recognizing the voice of local leaders in the courts presents a sound and persuasive legal argument on principles and issues important to good municipal government. By entering into a partnership with the International Municipal Lawyers Association in collaboration with the National Association of Counties we are excited to continue to advance our legal goals and ensure needs of cities, towns and villages are considered as the Supreme Court and lower courts rule on cases of consequence to our communities.”

To learn more about NLC, click here: https://www.nlc.org/

International Municipal Lawyers Association

The International Municipal Lawyers Association (IMLA) is a founding member of the LGLC.  Amanda Karras, IMLA’s Executive Director, stated the following regarding the importance of the LGLC:

“Local government attorneys know as well as anyone how important persuasive advocacy is and how a lack of a voice in an important case at the Supreme Court could be devastating for local governments.  IMLA is therefore pleased to be a part of the LGLC to help continue our long history of advocacy on behalf of local governments and to help elevate advocacy efforts of local governments at the Supreme Court.  We believe that by joining together with the other members of the LGLC, local governments will be well served before the Supreme Court.”

To learn more about IMLA, click here: https://imla.org/

Associate Members

Government Finance Officers Association

The Government Finance Officers Association (GFOA) is an associate member of the LGLC.  Chris Morrill, the Executive Director of GFOA notes:

“GFOA is pleased to support The Local Government Legal Center as an associate member.  Supreme Court cases can impact local government finances, hindering the ability to serve their citizens.  Therefore, it is critical to our members that skilled legal minds monitor Supreme Court cases and, when necessary, provide strong advocacy for local governments. We are fortunate that IMLA has this expertise and experience and has stepped forward to lead these efforts.”

To learn more about GFOA, click here: https://www.gfoa.org/

If you would like to learn more about supporting the LGLC and inquire about becoming a member,
please contact Amanda Karras at akarras@imla.org.

Education

The LGLC will educate the Groups’ members through in-person and virtual presentations regarding the Supreme Court, Supreme Court cases of importance to local governments, and other important legal trends involving local governments. The LGLC will also provide periodic blog posts regarding important Supreme Court cases and trends as well as legal activity of the LGLC and its members at the Supreme Court.


Supreme Court Review for Local Governments: 2023-2024 Term

Hosted by the Local Government Legal Center (LGLC), join legal experts in a discussion of the Supreme Court’s important decisions of the term impacting local governments. The Supreme Court heard several monumental cases this term, including cases related to:

  • Homeless encampments
  • First Amendment social media for government employees and officials
  • An employment standard for transfers under Title VII
  • Impact fees and more!

The LGLC is a coalition of national local government organizations formed in 2023 by the National Association of Counties (NACo), National League of Cities (NLC) and International Municipal Lawyers Association (IMLA) to provide education to local governments regarding the Supreme Court and its impact on local governments and local officials and to advocate for local government positions at the Supreme Court in appropriate cases. Visit the Local Government Legal Center to learn more.

Speaker: Theane Evangelis, John Korzen & Amanda Karras

Click here to get registered.


Navigating social media as a local leader in the wake of recent SCOTUS decision

Hosted by the Local Government Legal Center (LGLC), legal experts will lead a discussion of the Lindke v. Freed decision in which the Supreme Court set forth the test for when local government officials are considered “state actors” for the purposes of the First Amendment when they post on social media.

Come learn how your municipality can implement and enforce local policies that reflect this court decision.

The LGLC is a coalition of national and local government organizations formed in 2023 by the National Association of Counties (NACo), National League of Cities (NLC), International Municipal Lawyers Association (IMLA), and Government Finance Officers Association (GFOA) to provide education to local governments regarding the Supreme Court and its impact on local governments and local officials and to advocate for local government positions at the Supreme Court in appropriate cases.

Speaker: Julie A. Tappendorf & Amanda Karras


Supreme Court Preview for Local Governments: 2023-2024 Term

Hosted by the Local Government Legal Center (LGLC), join legal experts in a discussion of the new Supreme Court term and what decisions local governments should watch. The Supreme Court will rule on several major cases this term, including on issues related to:

  • A possible new standard for employment liability under Title VII;
  • Whether a public official’s social media account can constitute state action for the purposes of the First Amendment;
  • Whether the Supreme Court should overrule Chevron v. Natural Resources Defense Council, which relates to deference that courts should provide administrative agencies; and
  • Whether firearm regulations prohibiting individuals subject to domestic violence restraining orders violate the Second Amendment

Speaker: Michelle Kallen & Robert Loeb
Moderator: Erich Eiselt, IMLA’s Deputy General Counsel


Supreme Court Review for Local Governments: 2022-2023 Term

Hosted by the Local Government Legal Center (LGLC), join legal experts in a discussion of the Supreme Court’s important decisions of the term impacting local governments. The Supreme Court will rule on several monumental cases this term, including on issues related to:

  • Whether the First Amendment allows for exceptions to anti- discrimination ordinances,
  • The Independent State Legislature Theory,
  • A new test for Waters of the United States,
  • An important Title VII / employment law case,
  • And more.

Speakers: Aileen McGrath & John Korzen
Moderator: Erich Eiselt, IMLA’s Deputy General Counsel

Advocacy/Case Protocol

The LGLC’s name will only be used in a case where all three of the founding members of the LGLC join an amicus brief.  As the LGLC files amicus briefs, this website will be updated with information about those cases and briefs.

Grants Pass v. Johnson

Filing Date: March 4, 2024 (Supreme Court Merits)
Pro Bono Author: Brandon Rain

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Facts: Grants Pass is a small city in Oregon with a population of about 38,000, of whom at least fifty are homeless (though the number may be as many as 600).  Regardless, the number of homeless persons outnumber the available shelter beds.  The City passed several ordinances related to the regulation of sleeping outside, which taken together made it nearly impossible to sleep outside with any form of bedding or shelter on public land in the City.  See GPMC 5.61.020; GPMC 5.61.030; GPMC 6.46.090.

A violation of these ordinances resulted in fines, which would escalate if left unpaid.  The “park exclusion” ordinance allowed police officers to bar someone from a city park for 30 days if they received 2 more citations for violating park ordinances within one year. GPMC 6.46.350(A).  If someone had received a park exclusion ordinance and was later found in a park, that could result in criminal trespass.  The City amended its camping ordinance after Martin (discussed below) to make it clear that the involuntary act of sleeping without shelter in a park was not prohibited, rather what was prohibited was “camping” – i.e., sleeping with any bedding / shelter.

The City had four temporary shelters, but two were explicitly religious and required residents to attend Christian worship services.  Another was a “sobering center,” which was just a place for intoxicated people to sober up and did not have beds.  The fourth was a youth shelter.  It was undisputed that the City did not have enough beds for its homeless population and really did not have any shelter for adults that did not wish to stay somewhere that was overtly religious.

Background and Lower Court Decision: In September 2018, a three-judge panel issued Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), holding “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 1048.  Although the decision was both novel and sweeping, the opinion did offer a modicum of comfort to local governments that they could still regulate camping on public property by way of a footnote where it stated:

Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible… So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes.

Shortly after the Martin decision was issued, three homeless individuals in Grants Pass filed a class action lawsuit on behalf of those that are “involuntarily homeless” against the City, arguing its ordinances are unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishment Clause and Excessive Fines Clause (among other arguments).   The Ninth Circuit held that the district court did not abuse its discretion by certifying a class action in the case despite Martin appearing to require an individualized inquiry into whether the person was involuntarily homeless.  The Ninth Circuit reasoned that the class was defined as only those that were “involuntarily homeless” and therefore, no individualized inquiry was necessary as the City did not claim to have adequate shelter for all 600 homeless individuals in Grants Pass.

The Ninth Circuit also concluded that the City’s ordinances violated the Cruel and Unusual Punishment Clause and a “local government cannot avoid this ruling by issuing civil citations that, later, become criminal offenses.”  The court did not address ordinances that solely provided civil infractions.  The Ninth Circuit affirmed the district court’s holding that “the anti-camping ordinances violated the Cruel and Unusual Punishment Clause to the extent they prohibited homeless persons from ‘taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.’”

The dissent pointed out that the class certification was inappropriate under Martin’s requirement for an individualized inquiry into whether adequate shelter was available to the homeless person.  Per the dissent:

the mere fact that a city’s shelters are full does not by itself establish, without more, that any particular person who is sleeping in public does “not have a single place where [he or she] can lawfully be.” Id. The logic of Martin, and of the opinions in Powell on which it is based, requires an assessment of a person’s individual situation before it can be said that the Eighth Amendment would be violated by applying a particular provision against that person… Under Martin, the answer to the question whether the City’s enforcement of each of the anti-camping ordinances violates the Eighth Amendment turns on the individual circumstances of each person to whom the ordinance is being applied on a given occasion. That question is simply not one that can be resolved, on a common basis, “in one stroke.”

Click here to see the brief.

Gonzalez v. Trevino

Filing Date: January 31, 2024 (Supreme Court Merits)
Pro Bono Author: Harker Rhodes & Mariel Brookins

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This case concerns a question left open by the 2019 Supreme Court decision, Nieves v. Bartlett.  In Nieves, the Supreme Court held that probable cause defeats a First Amendment retaliatory arrest claim as a matter of law, except in a small subset of cases.  The Court is now poised to answer what the exception from Nieves means and what type of evidence is necessary.

Background

In Nieves, officers arrested a partygoer, Bartlett, at an extreme sporting event after a heated exchange whereby the officers took Bartlett’s actions to be hostile and aggressive. The prosecutor found there was probable cause to arrest, but Bartlett sued (after charges were dismissed) claiming the arrest was in retaliation for his speech, in violation of the First Amendment. The Supreme Court held that a plaintiff must generally plead and prove the absence of probable cause to move forward with a retaliatory arrest claim under the First Amendment. However, the Court left open a “narrow qualification” for the situation where an officer has probable cause to arrest but where officers “typically exercise their discretion not to do so.” The Court provided an example of someone who is complaining about the police and then jaywalks. The Court goes on to explain that because so few people are actually arrested for jaywalking, if a plaintiff can demonstrate “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been” then the plaintiff cam proceed with a retaliatory arrest claim even if the officer had probable cause to arrest.

Facts

In this case, Sylvia Gonzalez was elected to a seat on the city council for Castle Hills, Texas, a town with fewer than 5,000 residents. As her first act in office, she called for the removal of the city manager by organizing a nonbinding petition.  During her first city council meeting, a resident submitted the petition to remove the city manager to council.  The council meeting grew contentious.

he meeting, Gonzalez left her belongings on the dais and went to speak to a constituent.  The Mayor, Edward Trevino, who was supposed to have the petition, asked Gonzalez to look for the petition in her belongings and they found the petition there.  The Mayor informed the police that he wished to file a criminal complaint against Gonzalez for taking the petition without consent.  (A resident during the meeting had indicated that Ms. Gonzalez had gotten her to sign the petition under false pretenses so the Mayor believed Ms. Gonzalez had taken the petition as a result of that accusation). The police officer investigating the allegation determined that Gonzalez violated Texas Penal Code §§37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he … intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” The investigation took over a month.

The officer secured a warrant and instead of issuing a summons for a nonviolent crime, booked her into the jail, where she spent the day.

Gonzalez sued under Section 1983, claiming that she was arrested in retaliation for her protected speech.  Gonazlez claims that this criminal statute has not been used in the county to criminally charge someone trying to steal a nonbinding or expressive document in the last decade.  While there were 215 grand jury indictments under the statute, she claims none remotely resembled the facts of this case.

Fifth Circuit Decision

The Fifth Circuit held that this case does not fall within the Nieves exception because Gonzalez did not present “objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”  The court reasoned that she failed to provide evidence of others who had mishandled a government petition and were not prosecuted.  Instead, she provided evidence of who was prosecuted under the statute and argued their offenses were different than hers.  The Fifth Circuit rejected her invitation to infer that because nobody else was prosecuted for similar conduct her arrest must have been motivated by her speech.  The court emphasized that the Supreme Court requires “objective evidence” of “otherwise similarly situated individuals” who engaged in the same criminal conduct but were not arrested.  And here, she came up short.

Issues: (1) Whether the probable-cause exception in Nieves v. Barlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests.

Click here to see the brief.

Sheetz v. County of El Dorado

Filing Date: December 19, 2023
Pro Bono Author: Austin Yang

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Summary: This case involves the question of whether Nollan / Dolan should apply in the context of legislative exactions.  A conclusion that the heightened requirements from these cases would apply to legislative exactions would put more impact fees in jeopardy of being struck down.  That would in turn have a significant impact on local government budgets, economic development, and the ability to improve infrastructure and meet community demands for services.

Facts: El Dorado County adopted a General Plan that required new development to pay for road improvements necessary to mitigate the traffic impacts from such development. The General Plan was then amended to include a traffic impact mitigation fee (TIM) to finance the construction of new roads and the widening of existing roads within its jurisdiction. The amount of the fee is set by formula and generally based on the location of the project (i.e., the specific geographic zone within the County) and the type of project (e.g., single-family residential, multi-family residential, general commercial). In assessing the fee, the County does not make any “individualized determinations” as to the nature and extent of the traffic impacts caused by a particular project on state and local roads.

Mr. Sheetz, a resident of the County, applied for a building permit to construct a single-family home on his property. The County agreed to issue the permit on the condition that he pay a TIM fee in the amount of $23,420.  He paid and the permit was issued, but he then challenged the TIM fee as invalid under the Takings Clause of the Fifth Amendment.  He argued that the TIM fee was an unconstitutional condition under Nollan and Dolan as the County did not make an individualized determination that an “essential nexus” and “rough proportionality” existed between the traffic impacts caused by his project and the need for improvements to state/local roads.

Legal Background:  The Supreme Court has identified “land-use exactions” also known as “impact fees” as a special kind of taking under the Fifth Amendment.  A land use-exaction occurs when the government demands real property or money from a land-use permit applicant as a condition of obtaining a development permit.  The leading examples of “exactions” come from the Supreme Court’s decisions in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. Johns River Water Management Dist., 570 U.S. 595 (2013).

To determine if an exaction violates the Takings Clause, courts apply the doctrine of “unconstitutional conditions,” which sets forth that the government may not request a person to give up a constitutional right “in exchange for a discretionary benefit conferred by the government where the benefit sought has little of no relationship to the property.”  The Court explained in Koontz, “[u]nder Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.”  Thus, the government must satisfy an essential “nexus” between the government’s legitimate interest and the exaction (Nollan) and it must show “rough proportionality” between the exactions and proposed impact of the development (Dolan).

Lower Court Holding: Against this backdrop, the California Court of Appeals held that the Nollan and Dolan “essential nexus” and “rough proportionality” tests do not apply to legislative exactions that are generally applicable to a broad class of property owners like the one at issue in this case.  The court distinguished legislative exactions from those fees that are done on an individual or ad hoc basis and which require discretion like the ones imposed in Nollan and Dolan. The court reasoned that the heightened scrutiny required under Nollan and Dolan is not applicable where there is no discretion involved in the fee process, as is the case with legislatively enacted fees.  Because the fee applied to all new development projects in the County and did not require discretion, the court used a lower standard to review it and upheld the fee.

Issue:  The question presented is whether a permit exaction is exempt from the unconstitutional conditions doctrine as applied in Nollan and Dolan simply because it is authorized by legislation.

Click here to see the brief.

Muldrow v. City of St. Louis

Filing Date: October 18, 2023
Pro Bono Authors: Amanda Karras, Erich Eiselt, Deanna Shahnami and Ravinder Arneja

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Facts: In 2017, the newly appointed interim police commissioner of the City of St. Louis (City) announced various staffing changes as he took over the City Police Department (Department). A total of seventeen male and five female officers were transferred to new assignments.  One such transferee was Jatonya Clayborn Muldrow (Muldrow), a police sergeant and one of four officers—two male and two female—transferred out of the Intelligence Division.  Muldrow was laterally transferred to the Fifth District, where the Department needed additional sergeants. She retained her pay and rank, a supervisory role, and responsibility for investigating violent crimes. Soon after, Muldrow informally sought a transfer to the Second District, where she would have been an administrative aide. But she was transferred back to her former position in the Intelligence Division, having spent eight months in the Fifth District.

Muldrow then brought a gender-discrimination claim under Title VII of the Civil Rights Act of 1964. She asserted that her transfer to the Fifth District, and the alleged failure to approve her transfer request to the Second District thereafter, violated § 703(a)(1) of the Act, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex[.]”

Holdings Below: The Eighth Circuit affirmed the district court’s grant of summary judgment to the City, agreeing with the lower court that Muldrow failed to submit evidence allowing a jury to find that “she experienced an adverse employment action.” It held that “An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage…[M]inor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action.”

The Circuit listed factors to be considered when examining whether an “involuntary transfer” or “denial of a sought-after transfer” rises to the level of an adverse employment action: whether it results in (or would have resulted in) “a change in supervisory duties, prestige, schedule and hours, or promotion potential.”  The differences between positions must be “material” to give rise to a discrimination claim, not “minor” or “trivial.” The Eighth Circuit held that Muldrow failed to support her assertion that Fifth District work was “more administrative and less prestigious,” or that she “suffered a significant change in working conditions or responsibilities.”  Her requests for transfer to an administrative-aide position were never formalized and never reached senior decision makers.  In sum, the supposed denial of Muldrow’s transfer request did not amount to an adverse employment action.

Certiorari: Muldrow filed for certiorari, arguing that nothing in the Title VII provision at issue requires an “adverse employment action” and that the Eighth Circuit interpretation of Title VII is not faithful to the statutory text.

The Court granted cert on June 30, 2023, on the following question:

Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

Click here to see the brief.

O’Connor-Ratcliff v. Garnier

Filing Date: June 30, 2023  (Supreme Court Merits)
Pro Bono Author: Caroline Mackie, Robert Hagemann, Andrea Liberatore & Rohun Shah

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Facts: In this case, two school district officials created public Facebook and Twitter pages to promote their campaigns for office.  They maintained separate private accounts for family/friends.  After they won their elections, they used their public social media pages generally to promote school board business, solicit input on board decisions, invite the public to school board meetings, etc. The “about” section on the pages lists their positions as school trustees, and links to official trustee emails.  Only the trustees themselves could post on their public pages, but members of the public could comment on a post or react to it (like, dislike, etc.).

Christopher and Kimberly Garnier (Garniers) were members of the community with children in the school district.  They would frequently write repetitive and critical comments on the school board officials’ pages.  For example, within ten minutes of the officials’ posting a message on their pages, the Garniers would post over 200 identical replies.  The school board officials deleted and hid the posts and then eventually blocked them from their social media accounts.

The Garniers sued under Section 1983, claiming the school board officials had violated their First Amendment rights by blocking them from their social media pages.

Proceedings Below: The Ninth Circuit concluded that the school board officials were acting under the color of state law for the purposes of Section 1983 and that therefore blocking the Garniers from their account because of the message the Garniers were promoting violated the First Amendment. The Ninth Circuit analogized the situation to off-duty governmental employees, explaining that the question is whether the public official’s conduct even if “seemingly private,” is sufficiently related to the performance of his or her official duties to create “a close nexus between the State and the challenged action,” or whether the public official is instead “pursu[ing] private goals via private actions.”  The Ninth Circuit concluded that the social media pages were “overwhelmingly” geared toward providing official information and soliciting feedback on the same.  The court also rejected the argument that these were personal campaign pages even though that is how they started out.

Issue:  Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.

Click here to see the brief.

Lindke v. Freed

Filing Date: June 30, 2023  (Supreme Court Merits)
Pro Bono Author: Caroline Mackie, Robert Hagemann, Andrea Liberatore & Rohun Shah

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Facts:  James Freed (Freed) had a Facebook page, which started out as private, but once he had more than 5,000 friends, he converted it to a “page” which allows for unlimited followers.  His page was public (anyone could follow it) and for the page category, he chose “public figure.”  In 2014 (after he created the public Facebook page), he was appointed to City Manager of Port Huron, Michigan and he added that information to his Facebook page.  He listed his contact information as Port Huron’s, including linking to the city website, city email, etc. He used the page to post about personal and professional itemss, including things like his daughter’s birthday pictures, but also the town’s COVID-19 policies and articles on public-health measures as the pandemic continued.

Kevin Lindke (Lindke) was a citizen of Port Huron and unhappy with the City’s COVID policies.  Lindke would post negative comments on Freed’s Facebook page and Freed would delete those comments.  Freed eventually blocked Lindke from the page. Lindke sued, claiming blocking him from the Facebook page was “state action” for the purposes of a Section 1983 claim and that Freed had violated his First Amendment rights in doing so.

Proceedings Below: The Sixth Circuit concluded that Freed was not acting “under the color of state law” for the purposes of bringing a Section 1983 action.  The Sixth Circuit applies what it calls the “state-official test,” which asks if the official “is performing an actual or apparent duty of his office or if he could not have behaved as he did without the authority of his office.”  In concluding that Freed was not acting as a state official in using his Facebook post, the court emphasized that you must look at the page as a whole, not at individual posts in isolation.  The court reasoned that the Facebook page did not derive from his duties as City Manager nor did it depend on his authority as City Manager.  Freed also used no state or city funds or resources to run the page, no government employees helped him maintain it, and it was clear the page belonged to him and not the office of City Manager (i.e., it will stay with him when he leaves his job).

The court rejected the argument that the page helped him fulfill an official duty of communicating with constituents, pointing out that he is free to go to the hardware store in town and talk about this job and he is not engaging in official state action when he does that. The court also distinguished the case from the Trump case of several years ago where the former President was also sued for blocking critics on Twitter. The Sixth Circuit explained that the way that then-President Trump had used the account created “substantial and pervasive governmental involvement with and control over” the Twitter account and that Freed was not using his account in the same manner.

Issue: Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

Click here to see the brief.

Groff v. DeJoy

Filing Date: April 5, 2023 (Supreme Court Merits)
Pro Bono Author: Andrew Hessick & Richard Simpson

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Groff was hired by USPS as a Rural Carrier Associate, which is a non-career employee who provides coverage for absent employees.  The work for a RCA is as needed and the job requires flexibility.  RCAs do not accrue leave and any absences are unpaid.  During Groff’s employment, there was a shortage of RCAs in his region. Also, during this time, USPS contracted with Amazon to deliver packages, including on Sundays.  USPS indicated that the success of the Amazon Sunday delivery was critical to USPS.

Plaintiff’s sincere religious beliefs dictate that Sunday is meant for a day of worship and rest.  He therefore informed USPS that he was unable to work on Sundays.  USPS told him that during peak season (November – January) he would have to work Sundays or find another job.  But they offered other accommodations, including that he could start later on Sunday after attending services and work after.  USPS also offered to find employees to swap shifts with him.  USPS was able to find other employees to cover his Sunday shifts for some of the time, but there were at least 20 Sundays where no co-workers could swap, and Groff did not work (there were only 2 other individuals who could cover his shifts for some of time time).  Groff was disciplined for failing to work on those days and ultimately left USPS.

Groff sued alleging violations of Title VII for failing to accommodate his religion.

Title VII makes it unlawful “to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…religion.”  To establish a prima facie case of religious discrimination, Groff must show he has 1) a sincere religious belief that would prohibit work on Sunday; 2) informed his employer of the conflict; and 3) was disciplined for failing to comply with the conflicting job requirement.  The burden then shifts to the employer to demonstrate either that “it made a good-faith effort to reasonably accommodate the religious belief, or such accommodation would work an undue hardship upon the employer and its business.”

The first issue is whether the employer offered a reasonable accommodation.  If the employer did, the statutory inquiry ends.  In the Third Circuit, to demonstrate a legally sufficient accommodation, it must eliminate the conflict between the job duty and the sincerely held religious belief.  The Third Circuit concluded that “even though shift swapping can be a reasonable means of accommodating a conflicting religious practice, here it did not constitute an “accommodation” as contemplated by Title VII because it did not successfully eliminate the conflict.”

If the good faith attempts to accommodate the religious practice are unsuccessful, the next step in the analysis under Title VII asks whether providing the accommodation would work an undue hardship on the employer.  “An undue hardship is one that results in more than a de minimis cost to the employer.”  USPS provided evidence that Groff’s absences created more work for the postmaster and Groff’s superiors, created burdens for his co-workers who had to do extra work, and created a tense atmosphere amongst other employees and hostility toward management. The Third Circuit concluded that Groff’s requested accommodation to be exempt from working Sundays caused “more than a de minimis cost on USPS because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale…”

The Supreme Court granted certiorari on the following issues: (1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 stated in Trans World Airlines, Inc. v. Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.

Click here to see the brief.

Tyler v. Hennepin County

Filing Date: April 5, 2023 (Supreme Court Merits)
Pro Bono Author: John Baker & Katherine Swenson

More Information

To read the decision, click here.

To read the Local Government Legal Center amicus brief, click here.


Under Minnesota law, property taxes become a lien against the property once they are assessed.  Minn. Stat. § 272.31.  If property taxes are not paid during the year in which they are due, they become delinquent the following year, at which point, a county may obtain a judgment against the property.  Minn. Stat. § 279.03 subd. 1.  As a matter of notice and procedure, each year, the county auditor creates a delinquent tax list, which identifies the properties on which taxes are owed, the taxpayer(s), and the amount of taxes/penalties owed.  The delinquent tax list is published twice and mailed to all delinquent taxpayers.  A lawsuit is commenced against delinquent taxpayers and if there is no answer, the court enters a judgment against the property.

Delinquent taxpayers have several avenues to avoid forfeiture. First, while title in the property vests in the state after judgment is entered, that title is subject to the right of redemption, which is a 3-year period during which the taxpayer may redeem the property for the amount of delinquent taxes, penalties, costs, and interest.  Minn. Stat. §§ 281.01–281.02, 281.17.  Second, a property owner seeking to avoid forfeiture who cannot afford to redeem the property, can make a “confession of judgment,” which then allows the property owner to consolidate the debt /tax delinquency and pay in installments over five to ten years. If a property owner fails to pursue either of these avenues, absolute title vests in the state and all outstanding taxes, penalties, interest, etc. are canceled.  Even after absolute title vests, the state still provides additional procedures for the property owner to repurchase his/her property.  Under Minnesota’s tax foreclosure scheme, former property owners have no way to claim any proceeds from the sale of the property in excess of the tax debt.

The Plaintiff in this case owned a condominium in Minneapolis and stopped paying taxes in 2010.  At the time the County sought judgment under the aforementioned statutory scheme, the Plaintiff owed $15,000 in unpaid state property taxes, penalties, costs, and interest. The Plaintiff received the statutorily prescribed notice of foreclosure, failed to answer, and then never tried to redeem the property during the 3-year period.  She also did not seek to repurchase the property.  Thereafter, Hennepin County sold the property for $40,000, and kept the surplus and distributed it in a manner pursuant to state statute.

Tyler sued, claiming the County violated the Fifth Amendment’s Takings Clause and the Eighth Amendment’s Excessive Fines Clause by keeping the value of her property in excess of the tax debt that she owed.  As to the Taking’s inquiry, the Eighth Circuit explained that for Tyler to succeed, she “must show that she had a property interest [under Minnesota law] in the surplus equity after the county acquired the condominium.”   The Eighth Circuit found that under Minnesota law, there is no right to surplus equity in a property and “where state law recognizes no property interest in surplus proceeds from a tax-foreclosure sale conducted after adequate notice to the owner, there is no constitutional taking.”

The Eighth Circuit affirmed the district court’s holding that the County’s retention of her surplus equity was not an excessive fine under the Eighth Amendment.   The district court explained that whether the forfeiture is a “fine” turns on the question of whether it is a form of punishment.  The district court agreed with the County that the forfeiture at issue here was remedial as it related to helping the government recoup its costs associated with non-payment of property taxes and was therefore not a fine under the Eighth Amendment.  The court rejected the argument that the forfeiture was punitive simply because the County received more than what was needed to make it whole.

Issues: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment’s takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.