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 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.

Gonzalez v. Trevino

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

More Information

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.

O’Connor-Ratcliff v. Garnier

Filing Date: June 30, 2023  (Supreme Court Merits)
Pro Bono Author: Robert Hagemann

More Information

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

More Information

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

More Information

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.