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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 03 Nov 2014 in Case Notes
Cities and states from California to Maine have confronted the problem of hotels that are crime magnets. hotel One solution that some evidence suggests effectively deters crime is ordinances or state laws that require hotels to keep detailed information about guests that are subject to police inspection.  These ordinances and laws generally do not require police to obtain a warrant. In Los Angeles v. Patel a Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants.  Motel operators claim this ordinance is facially invalid under the Fourth Amendment. The first issue the Supreme Court will decide in this case is whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment.

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 06 Oct 2014 in Case Notes
Last Monday’s Supreme Court “long conference” did not disappoint.  The Supreme Court granted a total of 11 petitions.Supreme Court3  At least four of those cases are relevant to local government. Housing discrimination.  For the third time the Court has accepted a case involving this issue of whether disparate-impact (as opposed to disparate treatment) claims can be brought under the Fair Housing Act (FHA).  It remains to be seen if Texas Department of Housing and Community Affairs v. The Inclusive Communities Project will settle like its predecessors, Mt. Holly v. Mt. Holly Citizens in Action and Magner v. Gallagher.  The 11 federal circuits that have decided this issue have all held that disparate-impact claims are actionable.  The Supreme Court is expected to rule to the contrary.  Local government have been sued for disparate impact under the FHA and have sued other entities. Fourth Amendment search.  In its second Fourth Amendment case of the term, Rodriguez v. United States, the Court will decide whether a police officer violates the Fourth Amendment by extending (for just a few minutes) an already-completed traffic stop for a dog sniff.  The Eighth Circuit held the search in this case was reasonable.  The police officer waited seven or eight minutes after the traffic stop was completed before deploying his sniffer dog because he wanted backup given that there were two people in the stopped car. Employment discrimination. 

Posted 03 Sep 2014 in IMLA Briefs
On Friday, IMLA filed its brief in Wyatt v. Gonzalez,judicial bench a petition stage Supreme Court case, which involves a question of whether immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” where the plaintiff offered no contradictory evidence.  In this case, the police officer was trapped inside a vehicle controlled by someone who had already committed several dangerous felonies.  The officer shot and killed the driver of the van, after he resisted verbal commands and non-lethal force.  The plaintiffs did not dispute that the driver of the van “stomped” on the accelerator with the officer trapped inside.  Nonetheless, the Ninth Circuit ruled that summary judgment on the plaintiffs’ Fourth Amendment claim was inappropriate because the parties disputed how fast the van was traveling at the time the officer employed deadly force. IMLA’s brief argues that the Ninth Circuit’s focus on the speed of the van is misguided, as that particular fact is not material for the purposes of the summary judgment analysis. 

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 08 Aug 2014 in IMLA Briefs
Every Supreme Court tax case comes down to an argument perhaps most familiar to small children6355404323_cf97f9c58e: “It isn’t fair.” The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief in Comptroller v. Wynne argues that the tax policy choice the Maryland legislature made is fair (or at least fair enough) and that state and local governments should be able to devise tax schemes without judicial interference. In Comptroller v. Wynne the Supreme Court will determine whether the U.S. Constitution requires states to give a credit for taxes paid on income earned out-of-state.

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 14 Jul 2014 in Case Notes
In a unanimous opinion in McCullen v. Coakley,Supreme Court3 the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment. Massachusetts adopted this statute because protesters routinely violated a previous statute.  Petitioners were “sidewalk counselors” who claimed the buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.” The State and Local Legal Center’s (SLLC) amicus brief points out that cities frequently use buffer zones in numerous contexts.  For example, prior to McCullen, lower courts upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners.  McCullen begs an obvious question:  will any buffer zone statutes and ordinances survive constitutional scrutiny now?