Supreme Court Puts Clean Power Plan Regulations on Hold

The Obama administration’s Clean Power Plan requires power plants to reduce carbon emissions and establishes state-by-state targets to accomplish this goal.

In a 5-4 decision, the court halted enforcement of the plan until after legal challenges are resolved. (Getty Images)

The Supreme Court may currently be on recess but that did not stop it from issuing a stay preventing the Clean Power Plan regulations from going into effect until the D.C. Circuit Court of Appeals, and the Supreme Court if it chooses to, rules on the regulations.

The Clean Power Plan requires power plants to reduce carbon emissions and establishes state-by-state targets to accomplish this goal.

Twenty-seven states and others are currently challenging the Clean Power Plan. They argue that the regulations exceed the Environmental Protection Agency’s authority granted under the Clean Air Act.

“We disagree with the Supreme Court’s decision to stay the Clean Power Plan while litigation proceeds,” White House spokesman Josh Earnest said in a statement.

The National League of Cities and the U.S. Conference of Mayors filed a motion in the D.C. Circuit supporting the Clean Power Act. It discussed the impact climate change has had on cities.

The Supreme Court has apparently never blocked an EPA regulation before the Court has had a chance to rule on the regulation.

The Court’s actions indicate it is likely to hear this case on appeal after it is decided by the D.C. Circuit.

The four more liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) voted against the stay.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Hears Oral Argument in Mandatory Union Fee Case

The petitioners in Friedrichs v. California Teachers Association are asking the Court to restrict the collection of fees by unions that represent more than nine million public employees in 23 states and the District of Columbia.

(Getty Images)

It was a typical oral argument at the Supreme Court in a “big” case. Protesters outside with opposing messages tried to yell over each other, but everyone inside was listening to Justice Kennedy.

In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

If the Court doesn’t overrule Abood v. Detroit Board of Education (1977), it may instead rule that public employees may be allowed to opt-in rather than required to opt-out of paying “nonchargeable” political union expenditures.

In Abood, the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration and grievance-adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. So no free-riders are allowed.

In two recent cases, Knox v. SEIU (2012) and Harris v. Quinn (2014), in 5-4 opinions written by Justice Alito and joined by the other conservative Justices and Justice Kennedy, the Court was very critical of Abood. Neither case squarely raised the issue of whether Abood should be overturned.

Justice Kennedy, whose vote may or may not be crucial in this case, asked questions of both sides. But he repeatedly expressed the view that many teachers may disagree with positions that the teachers union takes on issues like tenure, merit pay and class size. He characterized the real problem with agency fee as “compelled riders,” not free riders.

Just as time was running out for the attorney arguing for the teachers objecting to agency fee, Justice Kennedy asked the attorney to address the issue of opt-out versus opt-in. This was a significant question, especially from Justice Kennedy. If all the Justices were pretty sure before argument that there were five votes to overturn Abood, the opt-in/opt-out issue would be irrelevant.

Overturning precedent is a drastic step, so unsurprisingly, many of the questions (particularly from the more liberal Justices) addressed that possibility. Justice Breyer’s questions were the most impassioned.

He pointed out that overturning Abood will mean overturning other precedent including Keller v. State Bar of California (1990) (bar dues for attorneys) and Board of Regents v. Southworth (student activity fees) (2000). He asked how the country would view the Supreme Court’s role in providing stability if all these cases were overturned. He also pointed out that in Plessy v. Ferguson (1896) (separate by equal) it was easy to identify the principle that the Court relied on in deciding that the case was just wrong. However, Justice Breyer could not find a comparable principle in this case.

Click here to view an NLC webinar held on Jan. 12, 2016 which discusses the legal issues in this case and what’s at stake for state and local governments if the Supreme Court rules that public-sector “agency shop” arrangements are unconstitutional.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Update: What Local Governments Should Be Paying Attention To

Register for NLC’s webinar, Will Public Sector Collective Bargaining Survive The Supreme Court Term? to learn more about what’s at stake for state and local governments.

Supreme-Court-Building

Unfair or Unconstitutional? The Supreme Court to Decide

You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional.

In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.

Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.

The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.

Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent.

The Third Circuit concluded Heffernan could not bring a perceived free-association claim because he wasn’t retaliated against for “taking a stand of calculated neutrality.” Instead, he was demoted on a “factually incorrect basis.” The Supreme Court has held that it does not violate the Constitution to discipline an employee based on incorrect information. To bring a First Amendment claim an employee must engage in First Amendment speech protected conduct, which Officer Heffernan failed to do in this case.

The SLLC amicus brief argues the Supreme Court need not find a constitutional claim exists when an employer misperceives that an employee has engaged in political speech. Collective bargaining statutes, “just cause” protections, civil service statutes, and statutes protecting against interference or attempts to interfere with any individual’s civil rights would prevent a state or local government employer from lawfully taking an adverse employment action in such circumstances.

The SLLC amicus brief also argues that if the Court were to hold that the First Amendment covers perceived First Amendment violations, it should clarify that the First Amendment does not protect political speech made by employees in sensitive and confidential positions, such as Heffernan.

Collin O’Connor Udell and Anne Selinger, Jackson Lewis, wrote the SLLC brief which was joined by the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association,  the International Public Management Association for Human Resources, and the National Public Employer Labor Relations Association.

Immigration and the ACA: A SCOTUS Conference to Remember?

A challenge to President Obama’s immigration deferral program and (another) challenge that could harpoon the Affordable Care Act (ACA) could make it on the Supreme Court’s docket this term and be decided by the end of June.

For the first time at the Supreme Court’s private conference on January 15, it will consider petitions in United States v. Texas (immigration) and Sissel v. Department of Health and Human Services (ACA).

The Court will have three choices: grant the petitions, deny the petitions, or postpone making a decision until a later conference. If it postpones a decision in either case, it must decide at the January 22 conference to accept the cases or they will be heard next term (assuming the petitions are ultimately granted).

If the Court is going to grant the immigration petition it will likely do so January 22 at the latest as the next President may simply not pursue Obama’s immigration program, rendering a June 2017 decision moot.

Immigration

In November 2014 the Secretary of Homeland Security initiated the Deferred Action for Parents of Americans (DAPA) program allowing certain undocumented parents with citizen children to lawfully stay and work in the United States. Twenty six states sued the United States and won before the Fifth Circuit. Four legal issue could be decided in this case.

The United States argues that the states lack “standing” to challenge the DAPA program. The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.

States also challenged the DAPA program as violating the Administrative Procedures Act (APA) notice-and-comment requirement and claim it is arbitrary and capricious in violation of the APA. The lower court concluded the states were likely to succeed on both claims.

The Fifth Circuit reasoned the DAPA is a substantive rule requiring notice-and-comment not a policy statement. It is arbitrary and capricious because it is “foreclosed by Congress’s careful plan” in the Immigration Naturalization Act for “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

While the states oppose the Supreme Court reviewing this case (as the won in the lower court), they do assert in their opposition petition that the DAPA program is unconstitutional. The Fifth Circuit did not address the constitutionality of the program. They argue it must have–but lacks–congressional authorization.

ACA

The Constitution’s Origination Clause provides that “all Bills for raising Revenue” must “originate in the House of Representatives,” but it allows the Senate to “propose or concur with Amendments” to revenue-raising bills originated by the House.

The ACA, which the Supreme Court has held imposes a tax on those who don’t have or buy health insurance, didn’t originate in the House. It originated in the Senate, which erased the text of another House-passed bill on another subject.

The questions the Court will consider deciding in Sissel v. Department of Health and Human Services are whether the individual mandate is a “Bill for raising Revenue” to which the Origination Clause applies and whether the Senate’s cut-and-replace procedure is an “amendment” pursuant to the Origination Clause.

The D.C. Circuit ruled in favor of the federal government reasoning that the “primary purpose” of the individual mandate was to induce people to buy health insurance to make the ACA work, not raise revenue. So the ACA isn’t a “Bill for raising Revenue” subject to the Origination Clause.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Your City Has to Fix Sign Codes After Reed – But It’s Manageable

Cities can, should, and must revise their sign codes to comply with the Supreme Court’s ruling on Reed v. Town of Gilbert, Arizona. While it might not be easy, and all the fixes won’t make perfect sense, Reed provides cities an opportunity to ask themselves what they want their communities to look like and how they can get there creatively and legally.

yard sale signMunicipal codes treat signs differently, meaning that you may not have to look at spray-painted signs like this in your neighbor’s yard for longer than necessary. (Getty Images)

Sign lawyers (yes, they do exist) agree on one thing and disagree on another. They agree that many sign codes in the United States had problems before the U.S. Supreme Court decided Reed v. Town of Gilbert, Arizona last summer. They disagree on how big of a deal the Reed decision is and, more specifically, on how much Reed changed sign law. Regardless of who is right, post-Reed your city’s sign code is still in trouble.

The good news is that many of the problems are fixable even if the solutions aren’t perfect. The Supreme Court had been clear before Reed that content-based distinctions in sign codes could be unconstitutional. What the Court wasn’t clear about was what exactly content-based distinctions are and how often, practically speaking, they are likely to be unconstitutional. In Reed the Court adopted a broad definition of content-based and concluded that content-based distinctions will almost always be unconstitutional.

Gilbert’s Sign Code treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. The Supreme Court held unanimously that Gilbert’s Sign Code violated the First Amendment because it made content-based distinctions that in Justice Kagan’s words would not even pass “the laugh test.”

To summarize the Court’s opinion in five words: sign codes must be content-neutral.

Even if this sounds straightforward, it is much easier to understand what problems might exist in your sign code — and how to fix them — using real world examples. According to sign lawyers (before and after Reed), two of the most common problematic provisions in sign codes are special rules for political signs and real estate signs.

Take, for example, a sign code which stipulates that, 30 days before an election and five days after an election, no permit is required for signs that are eight square feet or less that advocate for or oppose a particular candidate.

So why is this provision content-based? Well, only political messages are allowed on these signs. To manage the clutter of too many yard signs while avoiding controlling the content of speech on signs, many communities limit the square footage of signage in a yard. Instead of creating special rules for political signs, communities could allow any message on a certain square footage of signs which would, of course, include political messages.

But what about the fact that during silly season many people want to display multiple political signs which could exceed the normal sign allotment? One option would be to waive the square footage limitation for a time period that would just so happen to coincide with elections. But, of course, yard signs with any non-commercial message would have to be allowed during this sign free-for-all period — not just additional political signs.

Now let’s look at real estate signs. It is not uncommon for sign codes to say that one real estate sign of a particular size and duration is permitted on each lot. Why is this provision content-based? No other messages may be contained on such a sign.

What might be a solution that allows real estate signs? A sign code could say that, if a particular lot is for sale, one additional sign of a particular size and duration is allowed on the lot. This provision would regulate signs based on location and activity, not content. But again, the home owner could put any message on this additional sign — but presumably would put up a message about the property being for sale.

These two examples illustrate the sense and the absurdity of Reed. On one hand, in a democracy where all ideas and opinions are allowed it seems only fair that political messages don’t get special treatment. On the other hand, having special rules for real estate signs makes good practical sense and hardly seems designed to limit the marketplace of ideas.

Cities can, should, and must revise their sign codes to comply with Reed. While it might not be easy, and all the fixes won’t make perfect sense, Reed provides cities an opportunity to ask themselves what they want their communities to look like and how they can get there creatively and legally.

For further background on sign law, an overview of the Reed decision, and more solutions to problems with sign codes, listen to a recording of the SLLC/NLC webinar on Reed. The Fourth Edition of Street Graphics and the Law also contains suggestions on modifying sign codes to comply with Reed.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Three Supreme Court Cases that Impact Local Juvenile Justice Reform Efforts

This post was co-written by Laura E. Furr.

In the last decade, the Supreme Court has ruled three times on the rights of juvenile offenders to be free from cruel and unusual punishment under the Eighth Amendment. These cases provide important context for city leaders joining a national movement for reforming juvenile justice practices to hold youth accountable in developmentally appropriate ways.

Children are Different Infographic

Credit: Campaign for the Fair Sentencing of Youth

First, in Roper v. Simmons (2005), the Court ruled that states may not impose the death penalty on anyone who has committed a crime under the age of 18. In Graham v. Florida (2010), the Court held that juveniles cannot be sentenced to life in prison without the possibility of parole for any crime except for homicide. In Miller v. Alabama (2012), the Court held that a state cannot impose life in prison without parole on a juvenile without taking into consideration mitigating evidence about the offender’s age

And the Court has not finished addressing the rights of juvenile offenders. By the end of June 2016, the Court will decide whether Miller should apply retroactively to juvenile life in prison sentences issued before they originally decided the case.

Whereas the decisions in these cases and their reasoning seems straightforward, state and local implementation of these decisions often proves complex. The John D. and Catherine T. MacArthur Foundation’s Models for Change initiative recently released The Supreme Court and the Transformation of Juvenile Sentencing, which discusses how to implement these decisions and provides examples of jurisdictions that have adopted juvenile sentencing reforms.

The common theme across these 54 decisions: that juvenile offenders have “diminished culpability and greater prospects for reform,” and the state should spare juveniles the death penalty and only issue sentences for life in prison without parole for the most serious crimes.

Recent and emerging brain and adolescent development research underpins this common theme, and provides crucial support for the development of policies and programs that seek to decrease juvenile crime and improve positive outcomes for young people. Juveniles lack maturity and are more vulnerable to negative influences than adults, but are more capable of reform because their character is not yet fixed.

The core principle that “children are different” – related to the common theme in the decisions — applies throughout the local legal system, including in police interactions with youth, and in local regulation of young people, such as curfew and attempts to provide services for youth in need of help.

NLC’s juvenile justice reform initiative supports city leadership of reforms that hold youth accountable in ways that reflect the reasoning of the Supreme Court in this groundbreaking series of opinions.

About the Authors:

Lisa Soronen bio photo
Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

 

Laura Furr
Laura E. Furr is the program manager for justice reform and youth engagement in NLC’s Institute for Youth, Education, and Families. Follow Laura on Twitter at @laura_furr.

Supreme Court Preview for Local Governments, Part 2: Want Else Might the Court Take?

This is the second installment in a series highlighting upcoming Supreme Court cases that could affect local government. The first installment can be read here.

It’s opening week at the Supreme Court – last Thursday, the Court agreed to decide 13 more cases this term. (Getty Images)

Heffernan v. City of Paterson, New Jersey is perhaps the most interesting grant for local governments from the Court’s “long” conference. The question in this case is whether an employee can bring a First Amendment retaliation claim when he was incorrectly perceived to have been engaged in political speech. Officer Heffernan was demoted after he was seen picking up a campaign sign for the current police chief’s opponent. But the sign wasn’t for himself; it was for his bedridden mother. Had he been demoted for actually engaging in political speech he would have a First Amendment retaliation claim.

With at least 20 cases more to accept between now and the end of January, what issues of interest to local governments is the Court likely to agree to hear in the near future?

Cell Phone Location Data

When a cell phone is in contact with a cell tower its interaction with the closest cell tower is recorded. Prosecutors rely on cell site location information (CSLI) to place defendants at crime scenes. The Supreme Court is likely to decide soon whether a warrant is needed to obtain CSLI. In United States v. Davis the Eleventh Circuit held no warrant was required applying the “third party doctrine” – cellphone users have no expectation of privacy regarding information to which third party service providers have access. In United States v. Graham the Fourth Circuit refused to apply the third party doctrine, reasoning that “a cell phone user does not ‘convey’ CSLI to her service provider at all – voluntarily or otherwise – and therefore does not assume any risk of disclosure to law enforcement.”

While a circuit split exists, the plot thickens. First, it is possible the entire Fourth Circuit will rehear Graham and rule for the government, dissolving the split. Second, in both cases the courts held that CSLI could be admitted under the good faith exception to the exclusionary rule. In other words, CSLI wasn’t suppressed because police relied in good faith on court orders allowing them to seek CSLI from service providers. The Court may prefer to take a case where the lower courts did not affirm the conviction based on the exclusionary rule.

Excessive Force

So far the Court has accepted no qualified immunity or Fourth Amendment cases. The Court has relisted (postponed) deciding whether to hear two cases involving both issues in the context of excessive force.

In Mullenix v. Luna Israel Leija, Jr. led police on a high speed chase and twice called the police saying he had a gun and would shoot police officers. Officers set up tire spikes under an overpass. Officer Mullenix asked dispatch to tell his supervisor he was going to fire at Leija’s car. It is unclear whether Mullenix got his supervisor’s message to wait to see if the spikes worked. Mullenix shot and killed Leija before he hit the spikes.

In Los Angeles v. Contreras, as Robert Contreras fled on foot after attempting to commit a drive-by shooting and leading police on a high speech chase, he took something out of his front pant pocket police could not see but believed was a gun. Police shot him after he refused their repeated commands to stop and drop the gun. Police only recovered a cell phone. Contreras survived.

To learn more about what’s at stake for local governments this term, register for the State and Local Legal Center’s (SLLC) FREE Supreme Court Preview webinar, which will be held on October 14. The State and Local Legal Center files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments.

To learn more about the cases the Court has accepted so far affecting the local governments read the SLLC’s Preview for Local Governments.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

How the Roberts Court Has Affected Local Governments for 10 Years

The Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts. (Wikimedia Commons)

The Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts. (Wikimedia Commons)

Ten years ago today, John Glover Roberts, Jr. became the 17th Chief Justice of the United States Supreme Court. Roberts Court decisions have affected everyone from average Americans to Guantanamo Bay detainees. But what about state and local governments?

This article provides a brief analysis of how the Roberts Court has impacted 10 areas of interest to states and local governments: federalism, pre-emption, race, free speech, religion, public employment, qualified immunity, the Eighth Amendment, the Fourth Amendment, and gun control.

Regarding the first five topics, the Roberts Court has in recent years decided a number of important cases involving federalism; generally, federalism has fared well in these big cases. While the Court’s preemption doctrine has been thin, lately the Court has decided (with mixed results) a series of cases involving drug labeling. The Roberts Court has taken a keen interest in deciding cases involving race; generally, race-related decision making has fared poorly. The Roberts Court is well-known as pro-free speech (see Citizens United v. FEC) and its recent sign case is no exception (see Reed v. Town of Gilbert, Arizona). While the Roberts Court hasn’t decided a lot of religion cases, generally it has been tolerant of religion in public spaces.

As for the other five topics, the Court has only decided an average of one public employment case every other term; all but one have been in favor of public employers. State and local governments have done well in qualified immunity cases, likely because the qualified immunity standard is very deferential to government and the Court tends to not take close cases. More death penalty cases have favored the defendant than the state, at least partially because Justice Kennedy tends to join his more liberal colleagues in these cases. The Roberts Court’s most significant contribution to Fourth Amendment jurisprudence is making it clear that it isn’t going to allow new technology to undermine traditional Fourth Amendment protections. Finally, the Roberts Court gun control cases were landmark decisions.

How the Roberts Courts will decide cases over the next 10 years for state and local governments — and everyone else — may be largely in the hands of future Justices who will be appointed during that time period.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Preview for Local Governments – October 2015

The State and Local Legal Center (SLLC) files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments.

*Indicates a case where the SLLC has or will file an amicus brief.

(Getty Images)

The Supreme Court’s last term was big for local governments because the Court decided a number of important cases against them, most notably Reed v. Town of Gilbert, Arizona (2015), holding that strict scrutiny applies to content-based sign ordinances. The October 2015 term is one to watch, and not just because the Court has accepted numerous cases on controversial topics affecting local governments. Adding to the intrigue, many of the Court’s decisions this term are likely to be discussed by the 2016 presidential candidates as the election heats up. Here is a preview of the most significant cases for local governments that the Court has agreed to decide so far.

Public Sector Collective Bargaining

In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 states have enacted statutes authorizing “fair share.”

In Abood v. Detroit Board of Education (1977) the Supreme Court held that the First Amendment does not prevent public employees who do not join the union from being required to pay their “fair share” of union dues for collective bargaining, contract administration, and grievance adjustment. The rationale is that the union may not discriminate between members and nonmembers in performing these functions. So, no free-riders are allowed.

In two recent cases, the Court’s more conservative Justices, including Justice Kennedy, have criticized Abood.

If the Court doesn’t overrule Abood, it may instead rule that public employees may be allowed to opt-in rather than required to opt-out of paying “nonchargeable” union expenditures, in which case presumably fewer will opt-in.

“Fair share” and opt-out are foundational principles for public sector collective bargaining in the United States. Overturning either of them would mean a major change in the law that would substantially weaken public sector unions.

Redistricting

The U.S. Constitution Equal Protection Clause “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant — total population or total voting population — and who gets to decide? The Court will answer these questions in Evenwel v. Abbott.

Over the last 25 years the Supreme Court has repeatedly refused to decide (in cases all involving local governments) whether total voter population must be equalized in state and local legislative districts.

Plaintiffs claim that total voter population must be the metric. They argue their votes are worth less than other voters because they live in districts that substantially deviate from the “ideal” in terms of number of voters or potential voters.

The lower court disagreed because the Supreme Court has never held that any particular population metric is unconstitutional. Most state legislatures use total population, not total voting population data.

Asset Forfeiture

The question in Luis v. United States* is whether not allowing a criminal defendant to use assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment right to counsel.

Local law enforcement often receive asset forfeitures related to drug crime.

This case comes on the heels of Kaley v. United States (2014) where the Supreme Court held 6-3 that defendants may not use frozen assets which are the fruits of criminal activities to pay for an attorney.

Luis argues that it is “inconceivable” that she may not use “her own legitimately-earned assets to retain counsel.” The federal government responded that per her reasoning criminal defendants “could effectively deprive [their] victims of any opportunity for compensation simply by dissipating [their] ill-gotten gains.”

The Eleventh Circuit ruled against Luis, who was indicted on charges related to $45 million in Medicare fraud.

Local Governments Sued Out-of-State

In Franchise Tax Board of California v. Hyatt* the Court will decide whether states must extend the same immunities that apply to them to foreign local governments (and states) sued in their state courts. Hyatt is important to local governments who are often sued out-of-state.

The Franchise Tax Board (FTB) of California concluded that Gilbert Hyatt didn’t relocate to Nevada when his tax returns indicated he did and assessed him $10.5 million in taxes and interest. Hyatt sued FTB in Nevada for fraud among other claims.

In Franchise Tax Board of California v. Hyatt (2003) the Supreme Court held that the Constitution’s Full Faith and Credit Clause does not require Nevada to offer FTB the full immunity that California law provides.

A Nevada jury ultimately awarded Hyatt nearly $400 million in damages.

The Nevada Supreme Court refused to apply Nevada’s statutory cap on damages to Hyatt’s fraud claim, reasoning that Nevada has a policy interest in ensuring adequate redress for Nevada citizens that overrides providing FTB the statutory cap because California operates outside the control of Nevada.

Hyatt has also asked the Supreme Court to overrule Nevada v. Hall (1979), holding that a state may be sued in another states’ courts without consent. If the Court overrules this case, the question of whether the immunities a state enjoys must be offered to a foreign local government (or state) will be moot.

Affirmative Action

For the second time the Court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin.

Even though this case arises in the higher education context, the Supreme Court decides relatively few affirmative action cases so all are of interest to local governments that use race as a factor in decision-making.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Most other applicants are evaluated through a holistic review where race is one of a number of factors.

Abigail Fisher claims that using race in admissions is unnecessary because, in the year she applied, UT Austin admitted 21.5 percent minority students per the Top Ten Percent Plan.

The Supreme Court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored.

In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not have deferred to UT Austin’s argument that its use of race is narrowly tailored.

When the Fifth Circuit relooked at the plan again it concluded that it is narrowly tailored.

Only time will tell whether the Court agrees.

Conclusion

The Court’s docket is only about half full right now. Interestingly, the Court hasn’t accepted a Fourth Amendment or qualified immunity case yet — but no term would be complete without a few such cases. Of interest to the Court may be a case involving whether cell phone location data may be obtained without a warrant.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Affirmative Action at UT Austin: Why Cities Should Take Note

The Supreme Court has decided relatively few affirmative action decisions, such as this case involving the University of Texas at Austin (pictured above) – so all are of interest to state and local governments that use race as a factor in decision-making. (Gregg Mack/Getty Images)

If you were going to bet on the outcome of a Supreme Court case — much less the Court’s reasoning — you should avoid the Fisher case. It’s anyone’s best guess.

For the second time the Supreme Court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index,” he or she will be evaluated through a holistic review where race is one of a number of factors.

UT Austin denied Abigail Fisher, a white Texan who did not graduate in the top ten percent of her class, admission. She sued, claiming Austin’s use of race in admissions violates the Fourteenth Amendment’s Equal Protection Clause. She argued that using race in admissions is unnecessary because, in the year she applied, 21.5 percent of UT Austin admissions were minority students.

The Supreme Court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored. In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored.

When the Fifth Circuit looked once again at UT Austin’s affirmative action plan, it concluded that it is narrowly tailored. The Top Ten Percent Plan works well at increasing minority student enrollment because Texas schools are so segregated. But a number of well-qualified students are excluded — specifically, minority students who performed well at majority-white schools but weren’t in the top ten percent of their class. If race wasn’t considered during holistic review, almost every student admitted would be white because of the test score gap between white and minority students. And as a result of holistic review, a much higher percent of white students are admitted — but generally between 25-30 percent of the overall number of black and Hispanic students are admitted through holistic review.

A dissenting judge questioned much of the majority opinion, fundamentally arguing that while UT Austin claimed it is trying to achieve a “critical mass” of diverse students, its definition of “critical mass” is unknown, immeasurable, and unclear. So it is impossible to know whether UT Austin’s use of race is narrowly tailored to meet this goal. While the dissent said that “critical mass” isn’t a number, it questioned whether the number of black and Hispanic students admitted through holistic review — 216 out of 6,322 — is large enough to contribute to UT Austin’s critical mass objective. The dissent also questioned the merits of assuming that minority students admitted via the Top Ten Percent Plan are “somehow more homogenous, less dynamic and more undesirably stereotypical than those admitted under holistic review.”

Why did the Court take this case yet again (especially considering Abigail Fisher graduated from another university years ago, Justice Kagan will recuse herself again, etc.), and what will it say? The possibilities are endless, but cities should monitor this case nonetheless. Lyle Denniston discusses a few possible outcomes on SCOTUSblog.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Seven Significant Supreme Court Cases for Local Governments

photo - Supreme Court in Spring with FountainThe Supreme Court ruled on a number of cases this term that will affect local governments. (markphariss/Getty Images)

That same-sex couples have a constitutional right to marry and the Affordable Care Act remains intact will forever outshine every other decision from this Supreme Court term. But local governments will ignore the rest of this term at their peril. The Court issued many decisions affecting local governments — most of which had unfavorable outcomes. From upsetting sign codes to allowing disparate treatment claims under the Fair Housing Act, this is a term for local governments to remember. Below is a summary of the top seven cases.

Content-Based Sign Codes Unconstitutional

In Reed v. Town of Gilbert the Court held unanimously that Gilbert’s Sign Code, which treated various categories of signs differently based on the information they convey, violates the First Amendment.

Gilbert’s Sign Code treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs.

Content-based laws are only constitutional if they pass strict scrutiny — that is, if they are narrowly tailored to serve a compelling government interest.

While the SLLC argued in its amicus brief that Gilbert’s sign categories are based on function, the Court concluded they are based on content.

Gilbert’s Sign Code failed strict scrutiny because its two asserted compelling interests — preserving aesthetic and traffic safety — were “hopelessly underinclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.

Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court has defined as content-based. Communities will need to change these ordinances.

Hotel Registry Searches Need Subpoenas  

In City of Los Angeles v. Patel the Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available for police inspection without at least a subpoena violates the Fourth Amendment.

The purpose of hotel registry ordinances is to deter crime — drug dealing, prostitution, and human trafficking — on the theory that criminals will not commit crimes in hotels if they have to provide identifying information.

According to the Court, searches permitted by the City’s ordinance are done to ensure compliance with recordkeeping requirements. While such administrative searches do not require warrants, they do require “precompliance review before a neutral decisionmaker.” Absent at least a subpoena, “the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.”

In dissent, Justice Scalia cited the SLLC’s amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes: Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia.

It is likely following this decision that other record inspections done by governments outside the hotel registry context will also require subpoenas.

Fair Housing Act Disparate Impact Claims Recognized

In Texas Department of Housing and Community Affairs v. inclusive Communities Project the Court held 5-4 that disparate-impact claims may be brought under the Fair Housing Act (FHA).

In a disparate-impact case a plaintiff is claiming that a particular practice isn’t intentionally discriminatory but instead has a disproportionately adverse impact on a particular group.

The Inclusive Communities Project claimed the Texas housing department’s selection criteria for federal low-income tax credits in Dallas had a disparate impact on minorities.

In prior cases the Court held that disparate-impact claims are possible under Title VII (prohibiting race, etc. discrimination in employment) and the Age Discrimination in Employment Act relying on the statutes’ “otherwise adversely affect” language. The FHA uses similar language — “otherwise make unavailable” — in prohibiting race, etc. discrimination in housing.

This decision more or less continues the status quo for local governments. Nine federal circuit courts of appeals had previously reached the same conclusion. But, Justice Kennedy’s majority opinion contains a number of limits on when and how disparate impact housing claims may be brought.

Reasons for Cell Tower Denials Must Be in Writing

In T-Mobile South v. City of Roswell the Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.

The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include council meeting minutes.

The TCA requires that a local government’s decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”

Local governments must provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence. Council meeting minutes are sufficient. But, because wireless providers have only 30 days after a denial to sue, minutes must be issued at the same time as the denial.

Following this decision, local governments should not issue any written denial of a wireless siting application until they (1) set forth the reasons for the denial in that written decision, or (2) make available to the wireless provider the final council meeting minutes or transcript of the meeting.

No Dog Sniffs after Traffic Stops

In a 6-3 decision in Rodriguez v. United States the Court held that a dog sniff conducted after a completed traffic stop violates the Fourth Amendment.

In Illinois v. Caballes the Court upheld a suspicionless dog search conducted during a lawful traffic stop stating that a seizure for a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Officers may lengthen stops to make sure vehicles are operating safely or for an officer’s safety. A dog sniff, however, is aimed at discovering illegal drugs not at officer or highway safety.

In dissent, Justice Alito suggests savvy police officers can skirt the Court’s ruling by learning “the prescribed sequence of events even if they cannot fathom the reason for that requirement.”

Objectively Unreasonable is the Standard for Pretrial Detainee Excessive Force Claims

In Kingsley v. Hendrickson the Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement.

Pretrial detainee Michael Kingsley claimed officers used excessive force in transferring him between jail cells to remove a piece of paper covering a light fixture that Kingsley refused to remove.

The objective standard applies to excessive force claims brought by pretrial detainees because in a previous case involving prison conditions affecting pretrial detainees, the Court used the objective standard to evaluate a prison’s practice of double bunking. And the objective standard applies to those who, like Kingsley, have been accused but not convicted of a crime, but who unlike Kingsley are free on bail.

A standard more deferential to law enforcement applies to post-conviction detainees, who are housed with pretrial detainees, making this ruling difficult for jails to comply with. Following this decision it will be easier for pretrial detainees to bring successful excessive force claims against corrections officers.

Tax on Internet Purchases

In Direct Marketing Association v. Brohl Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”

In 1992 in Quill Corp. v. North Dakota the Court held that states cannot require retailers with no in-state physical presence to collect use tax.

To improve tax collection, Colorado began requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue. The Direct Marketing Association sued Colorado in federal court claiming that the notice and reporting requirements are unconstitutional under Quill.

The question the Court decided was whether this case could be heard in federal court (as opposed to state court). The Court held yes unanimously. This case is significant for local governments because the Court’s most influential Justice expressed skepticism about whether Quill should remain the law of the land.

Conclusion

While this article ends on a high note, overall, this Supreme Court term will require many, if not most, local governments to make some changes to keep in compliance with the law.

This is the third post in a series summarizing recent Supreme Court rulings that affect city governments. You can read about more cases here and here.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.