SLLC Tag

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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 23 Sep 2014 in IMLA Briefs
Its simple math.  Really.  But will the Supreme Court do it?  The Eleventh Circuit refused. The question in Alabama Department of Revenue v. CSX Transportation is whether a state discriminates against rail carriers in violation of federal law even when rail carriers pay less in total state taxes than motor carriers?  No, argues the State and Local Legal Center (SLLC) in an amicus brief.  Forty-two states exempt motor carriers from sales tax on diesel fuel.  This case is relevant to local government because a number of cities and counties in Alabama impose an additional sales tax on railroad diesel fuel.calc Rail carriers (railroads) in Alabama pay a four percent sales tax on diesel fuel.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  The Railroad Revitalization and Regulatory Reform Act (4-R) prohibits state and local governments from imposing taxes that discriminate against railroads.  Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax.  But, the Eleventh Circuit refused to compare the total taxation of railroads and trucks to avoid the “Sisyphean burden of evaluating the fairness of the State's overall tax structure.”  Instead it concluded Alabama’s sales tax on railroads violates 4-R because Alabama’s competitors don’t pay it. The SLLC brief argues that given state’s traditional power to tax the Court should interpret 4-R narrowly.   The brief suggests the Court could take three approaches to rule in favor of Alabama.

Posted 16 Sep 2014 in Case Notes, Commentary
While the Supreme Court’s next term officially begins on October 6, its “long conference” is September 29.  At this conference the Court will review a backlog of petitions that have been piling up over the summer.  SCOTUSblog complies a list of petitions that it thinks have a reasonable chance of being granted.  Eight of the petitions the Court will consider either during the “long conference” or at a later conference directly involve or impact local governments.5554035521_f6b59ccafa_n Public nuisance.  A Brighton, Michigan, ordinance presumes that an unsafe structure will be demolished as a public nuisance if the cost of repairing it exceeds its value.  The owner has no right to repair the structure.  Brighton property owners wanted to repair two unsafe structures even though Brighton estimated it would cost almost double the property value do so.  In Bonner v. City of Brighton, Michigan, the property owners claim the ordinance violates substantive and procedural due process. Employment.  Under federal employment law to bring a discrimination claim a plaintiff must prove that an “adverse action” occurred, and to bring a retaliation claim a plaintiff must prove a “materially adverse action” occurred.  The question in Kalamazoo County Road Commission v. Deleon is whether either can be proven when an employer grants an employee’s request for a job transfer (and the new position turns out to be less desirable than the old position).  The International Municipal Lawyers Association (IMLA) filed an amicus brief in this case.

Posted 28 Aug 2014 in IMLA Briefs
In T-Mobile South v. City of Roswell, the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement. CellTower The State and Local Legal Center’s (SLLC) amicus brief, which IMLA joined, argues it does. T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential.  The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone that were compatible with “the natural setting and surrounding structures.”  T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree that would be about 25-feet taller than the pine trees surrounding it. After a hearing, where city councilmembers stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk.

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 16 Jul 2014 in Case Notes
As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby Lobby. Gavel The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations. Though not obvious, this case may have a significant impact on land use regulation.  For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion.

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 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 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).