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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.” 

Posted 15 Feb 2017 in Case Notes, Commentary, IMLA Briefs
The Supreme Court accepts all kinds of cases involving states and local governments. Town of Chester v. Laroe Estates involves a long, complicated story and legal issue. Steven Sherman sued the Town of Chester alleging an unconstitutional taking as the town refused to approve a subdivision on plots of land Sherman intended to sell to Laroe Estates. Laroe Estates advanced Sherman money for the land in exchange for a mortgage on the property. Sherman defaulted on a loan to a senior mortgage holder who foreclosed on the property. Laroe Estates, claiming to be the owner of the property, sought to “intervene” in the takings lawsuit. The Federal Rules of Civil Procedure grant the right to intervene to non-parties who “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.”  The district court concluded that Laroe Estates lacked Article III “standing” under the U.S. Constitution to assert a takings claim against the Town. Laroe Estates argued that it was a “contract vendee” of the Sherman property. According to the district court, under longstanding circuit court precedent “contract vendees lack standing to assert a takings claim.” The question the Supreme Court will decide in Town of Chester v. Laroe Estates is whether Laroe Estates may intervene in this case even though it lacks standing.

Posted 31 Jan 2017 in Commentary
The authors of Searching for Scalia evaluated who on President Trump’s list of potential nominees to replace Justice Scalia’s seat on the Supreme Court would be most like Justice Scalia—the originalist, the textualist, and, most importantly, the conservative. The winner:  Supreme Court nominee Judge Neil Gorsuch! While just one case is too few to judge any Supreme Court nominee, one case in particular gives states and local governments a reason to be excited about this nomination. Last year Judge Gorsuch (strongly) implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. While Judge Gorsuch hasn’t ruled on abortion (an issue states care about) his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to states and local governments. Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ—agency deference—the views of states and local governments are generally more in-line with Judge Gorsuch’s view.

Posted 25 Jan 2017 in Case Notes, IMLA Briefs

Los Angeles County v. Mendez poses a simple question:  Should police officers be liable for the use of reasonable force (when they have done something they should not have).

In its amicus brief the State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, under which any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.  In Los Angeles County v. Mendez everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them.  Mendez kept a BB gun in his bed to shoot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed. The officers shot Mendez.

Posted 15 Dec 2014 in Case Notes, Commentary, IMLA Briefs
In a unanimous opinion in Integrity Staffing Solutions v. Busk, the Supreme Court held that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend waiting to undergo and undergoing security screenings.  Government employees who work in courthouses, correctional institutions, and warehouses routinely go through security screening at the beginning and/or end of the workday.   SCT stairs Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders.  They claimed that they should have been paid for the time they spent waiting and going through security screenings to prevent theft at the end of each shift. Under the FLSA employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity.  According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  The Court concluded that security screenings were not intrinsic to retrieving and packing products and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work.

Posted 25 Nov 2014 in Case Notes, Commentary, IMLA Briefs
The Supreme Court’s decision in Reed v. Town of Gilbert, Arizona could upset sign codes nationally.5554035521_f6b59ccafa_n  Most sign codes, like Gilbert’s, include different categories of temporary signs.  It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs.  In this case the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs.  The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.  IMLA joined the State and Local Legal Center’s (SLLC) amicus brief asking the Court not to go that far. Gilbert’s Sign Code includes temporary directional signs, political signs, and ideological signs.  After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert.  The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.

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.