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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?

Posted 01 Jul 2014 in Case Notes
This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert's sign ordinance against a First-Amendment challenge.SupremeCourt2 The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions. The Court could use this case to clarify when a local ordinance is "content-based" or "content-neutral," a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town's ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs:

Posted 26 Jun 2014 in Case Notes
BarricadeA local government can create a 35-foot buffer zone to restrict speech on a public street only if it has first made a serious effort to address the issue in other ways. That's the lesson of McCullen v. Coakley, the Supreme-Court decision today that strikes down a Massachusetts statute that makes it a crime to knowingly stand on a public way or sidewalk within 35 feet of a location where abortions are performed. Although the Court found that the law is content-neutral—and therefore not subject to strict scrutiny—the Court ruled that the Commonwealth had "too readily foregone options" that would not substantially burden speech. What are those options?

Posted 26 Jun 2014 in Case Notes
Supreme Court watchers love technology cases.Supreme Court Technology is for the young, so the cliché goes, and the youngest Justices are middle age.  Court watchers speculate, will the Justices even understand the technology they are ruling? Justice Robert’s 28-page opinion in Riley v. California, discussing encryption, apps, and cloud computing, reads like a primer on how cell phones work. The Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone.

Posted 20 Jun 2014 in Case Notes, Commentary
The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.5554035521_f6b59ccafa_n The good:  The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor. The bad:  The Court read “official job duties” narrowly to exclude speech about information merely learned at the job. The ugly:  The Court doesn’t decide the obvious next question:  is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment?

Posted 19 Jun 2014 in Case Notes

This morning, the Supreme Court decided Lane v. Franks, a case that this blog previously covered here. The Court ruled unanimously that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities. Image courtesy of Flickr by Mark Fischer (creative-commons license, no changes made)....

Posted 10 Jun 2014 in Case Notes
If preemption is your passion, this Supreme Court term has been a disappointment.Supreme Court3 CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one. In CTS Corp. v. Waldburger, the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose.

Posted 10 Jun 2014 in Case Notes
Imagine yourself going through a security screening. Annoying, right?  securityNow imagine yourself getting paid to go through a security screening.  Better, right?  But what if you are a city with a security screening process that as a result of a court decision must now pay employees to go through security screenings?  Sometime in the next year, the Supreme Court will affirm or reverse the Ninth Circuit’s decision to this effect in Integrity Staffing Solutions v. Busk. In this case the Supreme Court will decide whether hourly employees must be paid for time spent in security screenings under the Fair Labor Standards Act (FLSA). 

Posted 04 Jun 2014 in Case Notes
Taxpayers X and Y live in the same state and have the same income but Taxpayer X earns all of her income in-state while Taxpayer Y earns all of her income out-of-state.Supreme Court  Taxpayer Y pays more in taxes because she pays income taxes out-of-state and pays a county income tax in her home state.  Unfair?  (Not necessarily.  After all, Taxpayer Y receives government services in the county where she resides.)  Unconstitutional?  The Supreme Court will decide. The Supreme Court hasn’t decided a state and local government tax case since Armour v. Indianapolis, during the Court’s 2011 term.  In Comptroller v. Wynne it will decide an issue of first impression:  whether a state must offer a credit to its residents for all income taxes paid to another jurisdiction.  A decision against Maryland’s Comptroller would limit state and local taxing authority nationwide.