Supreme Court and Local Governments: What Will the Court Accept Next?

Supreme Court Justice John Paul Stevens To Retire

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 compiles 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.

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.

Housing discrimination.  For the third time the Court may take up the issue of whether disparate-impact (as opposed to disparate treatment) claims can be brought under the Fair Housing Act and, if they can, what burden of proof applies.  If the Court accepts Texas Department of Housing and Community Affairs v. The Inclusive Communities Project it remain to be seen whether it will settle like its predecessors, Mt. Holly v. Mt. Holly Citizens in Action and Magner v. Gallagher.  IMLA filed amicus briefs in both previous cases.

Sexually oriented businesses (SOBs).  An Indianapolis ordinance prohibits SOBs from operating from midnight to 10AM and on Sundays.  A city may regulate an SOB if it relies on evidence reasonably believed to be relevant to the secondary effects the city seek to address.  In City of Indianapolis, Indiana v. Annex Books Indianapolis argues the Seventh Circuit erred in requiring that its hours of operation regulation to be supported by “highly specific, statistically-significant empirical evidence.”

Police searches of hotel registries.  A Los Angeles ordinance requires hotels to gather data on guests and allows police to inspect hotel registries without a warrant.  The first question in City of Los Angeles v. Patel is whether facial challenges to ordinances are possible under the Fourth Amendment.  The second question is whether police can inspect hotel registries without a warrant.

Qualified immunity interlocutory appeal.  When a district court denies a government’s motion for summary judgment in a qualified immunity case the government may seek interlocutory (immediate) review of that decision.  But what if a district court simply refuses to consider a government’s motion for summary judgment in a qualified immunity case?  Is interlocutory review still available?  IMLA filed an amicus brief in Schultz v. Wescom.

Pregnancy counseling centers.  A New York City ordinance requires pregnancy counseling centers that have the appearance of being medical facilities to disclose they don’t have a medical license.  The issues in Pregnancy Care Center of New York v. City of New York, New York are whether requiring this disclosure violates the First Amendment and whether the “appearance” criteria is unconstitutionally vague.

Accommodating mentally ill suspects.  In City and County of San Francisco, California v. Sheehan police entered a mentally ill woman’s apartment, she threatened them with a knife, and they retreated.  Upon re-entry, police shot her after she threatened them again.  The first issue is whether the Americans with Disabilities Act requires police to accommodate armed, violent, and mentally ill suspects when bringing them into custody.  The second issue is whether the officers in this case should be denied qualified immunity because they could have anticipated her resistance.  IMLA filed an amicus brief in this case.

While the “long conference” is only a few weeks away, it may be a while before the Court decides whether to grant or deny any of these petitions, even those set for the “long conference.”  The Court frequently relists cases, or postpones deciding on petitions until later conferences during the term.

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About 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 Cities

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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 cities, read the State and Local Legal Center’s Supreme Court Preview for Local Governments.

Here is a quick highlight of what is on the Court’s docket right now that will affect local government:

Reed v. Town of Gilbert, Arizona and T-Mobile South v. City of Roswell will likely have the most impact on the day-to-day operations of local government. Reed deals with the constitutionality of the Town of Gilbert’s sign code while the Court in T-Mobile will determine what is required under the Telecommunications Act to deny a cell phone tower siting permit “in writing.”

To date the Court has only agreed to hear only one Fourth Amendment case. Heien v. North Carolina involves whether a traffic stop is permissible under the Fourth Amendment when it is based on an officer’s misunderstanding of the law.

Of interest to cities that operate jails, the issue in Holt v. Hobbs is whether a state prison grooming policy violates the Religious Land Use and Institutionalized Persons Act because it prohibits an inmate from growing a half-inch beard in accordance with his religious beliefs.

The Court has accepted three tax cases affecting local government this term. Comptroller v. Wynne involves the constitutionality of a state failing to offer residents a tax credit for all income taxes paid to another jurisdiction. Alabama Department of Revenue v. CSX Transportation involves whether a diesel fuel sales tax is discriminatory against railroads in violation of the Railroad Revitalization and Regulation Reform Act (4-R). And in Direct Marketing Association v. Brohl the Court will decide whether a challenge to the constitutionality of Colorado’s attempt to collect more tax revenue from online purchases can be heard in federal court.

No Supreme Court term would be complete without one Fair Labor Standard Act (FLSA) case. Integrity Staffing Solutions v. Busk ask the straightforward question of whether the time employees spend in security screenings is compensable under the FLSA.

While the question presented in Perez v. Mortgage Bankers Association sounds academic, this case will have a practical impact on local government. The issue is whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that interprets an agency regulation.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Overtaxed? NLC Involved in State Income Tax Supreme Court Case

Every Supreme Court tax case comes down to an argument perhaps most familiar to small children: “it isn’t fair.” The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief in Comptroller v. Wynne, which NLC joined, 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.

Forty-three states and nearly 5,000 local governments tax residents’ income. Many of these jurisdictions do not provide a dollar-for-dollar tax credit for income taxes paid to other states on income earned out-of-state. A decision against Maryland’s Comptroller in this case will limit state and local government taxing authority nationwide.

The Wynnes of Howard County, Maryland, received S-corporation income that was generated and taxed in numerous states. Maryland’s Tax Code includes a county tax. While Maryland law allowed the Wynnes to receive a tax credit against their Maryland state taxes for income taxes paid to other states, it did not allow them to claim a credit against their Maryland county taxes.

Maryland’s highest state court held that Maryland’s failure to grant a credit against Maryland’s county tax violated the U.S. Constitution’s dormant Commerce Clause, which denies states the power to unjustifiably discriminate against or burden interstate commerce. Among other things, the Maryland Court of Appeals noted that if every state imposed a county tax without a credit, interstate commerce would be disadvantaged. Taxpayers who earn income out of state would be “systematically taxed at higher rates relative to taxpayers who earn income entirely within their home state.”

The SLLC/IMLA amicus brief challenges the Maryland Court of Appeals decision on several grounds. First, the power of state and local governments to tax the income of its residents, wherever earned, has been upheld repeatedly at the Supreme Court. Second, the scope of the “dormant Commerce Clause” regarding individual non-resident income taxes has not been clearly defined by the Court and should not now construed to mandate credits. Third, taxation is a legislative matter that should not usurped by the judiciary.

And finally, state and local governments must make complex policy choices and tradeoffs when devising a taxing system. If Maryland was required to provide a dollar-for-dollar tax credit, a neighbor with substantial out-of-state income would contribute significantly less to pay for local services than a neighbor earning the same income in-state, even though both take equal advantage of local services. And to counterbalance a dollar-for-dollar tax credit, a county would need to raise some other tax, which will fall disproportionately on some other neighbor and often be more regressive. Maryland’s choice to avoid these results “does not cross any constitutional line.”

Paul Clement and Zack Tripp of Bancroft wrote the brief. The National Conference of State Legislatures, National League of Cities, U.S. Conference of Mayors, National Association of Counties, International City/County Management Association, and the Government Finance Officers Association joined the brief.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Didn’t Overrule Significant Public Employment Case

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Supreme Court cases are usually known for what they hold. 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.

Medicaid recipients who would otherwise be institutionalized may hire personal assistants. In Illinois, the Medicaid recipient is the employer and is responsible for almost all aspects of the employment relationship. But the personal assistant is a state employee for collective bargaining purposes. A number of personal assistants did not want to join the union or pay it dues.

In 1977 in Abood v. Detroit Board of Education the Court held that state and local government employees who don’t join the union may still be compelled to pay an agency fee (fair share) to cover the cost of union work related to collective bargaining. The Court refused to extend Abood to personal assistants who aren’t “full-fledged” public employees. What justifies an agency fee is that unions must promote the interests of members and nonmembers alike, meaning they cannot negotiate higher pay for members or only represent members in grievances. This justification has little force where a union cannot negotiate pay or represent nonmembers (or members) in grievances.

While the Court was highly critical of Abood, it did not overrule it, which many predicted the Court might do. But, this case is still a significant blow to public sector organizing. It has been widely reported that numerous states have recognized Medicaid personal assistants as state employees for collective bargaining purposes. As a result of this decision, none of these employees will have to pay fair share if they don’t join the union.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Do Buffer Zones Survive After McCullen?

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In a unanimous opinion in McCullen v. Coakley 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, which NLC joined, 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?

While only time will tell how lower courts will interpret McCullen, the opinion provides a detailed analysis lower courts are likely to apply to future buffer zone cases.

Almost all buffer zones are created in response to a specific problem (circus buffer zones: think animal rights protesters). This may not mean that lower courts will consider such buffer zones content-based. In McCullen, the Court concluded that Massachusetts’ buffer-zone law was content-neutral despite the fact that Massachusetts regulated speech only outside abortion clinics and not outside every building that might host an event that could attract protesters. The Massachusetts legislature identified a problem only at abortion clinics and reasonably decided to regulate speech only at abortion clinics.

Massachusetts lost in McCullen because the Court concluded its buffer zone law wasn’t “narrowly tailored to serve a significant government interest.” Lower courts are likely to look at all of the reasons the Court relied on when determining if a buffer zone in another context is constitutional.

First, McCullen wasn’t a protester, she was a “sidewalk counselor” who could only work effectively if she could have close, personal conversations with women. More traditional protesters wielding signs and megaphones may not have as persuasive of an argument that they need to get really close to their audience.

Second, the Chief Justice recommended that Massachusetts try to solve its public safety problems at abortion clinics by harassment and obstruction statutes and ordinances which are more targeted than buffer zones. A related reason the Court thought the buffer zones were overkill was that only one clinic in the state had problems on Saturday mornings only. So, when evaluating whether a buffer zone is narrowly tailored a lower court is likely going to look at whether effective options not so burdensome to free speech were available.

Finally, the Court didn’t buy Massachusetts’ argument that it tried other laws already on the book to solve the problems caused by protesters at abortion clinics but they did not work. Massachusetts could not cite to a single prosecution in 17 years and their last injunction dated to the 1990s. In short, cities that adopted buffer zone laws because “everything else failed” are going to have to prove it.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Birth Control Mandate Case Also a Land Use Case?

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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. 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.

RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion.” The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars state and local governments from enforcing land use regulations that substantially burden “the religious exercise of a person.”

So, FRFA and RLUIPA are related statutes. But FRFA only applies to the federal government, and RLUIPA only applies in the land use and institutionalized persons’ context. Both apply to “persons.”

If for-profit corporations are “persons” under RFRA they are also likely “persons” under RLUIPA. As Justice Ginsburg points out in her opinion quoting the SLLC’s amicus brief, this will have negative consequences for state and local government: “[I]t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’ That law applies to land-use regulation. To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute’s reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.”

The SLLC’s amicus brief focused exclusively on how “person” should be defined in RLUIPA. It discussed at the practical difficulties that will arise for state and local governments if corporations are “persons” under RLUIPA. “Interpreting RLUIPA to protect for-profit, secular corporations would dramatically expand the statute’s reach. For-profit corporations could avail themselves of RLUIPA’s broad definition of religious exercise to characterize secular commercial activity as religious in nature. They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely result would be a dramatic increase in the number of for-profit corporations claiming to engage in ‘religious exercise,’ with a concomitant increased burden on local governments administering land use regulations.”

The National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association signed onto the SLLC’s brief.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Privacy Please: Supreme Court Requires a Warrant to Search Cell Phones

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Warrantless searches of cellphones?  Simple question.  Simple answer.  No (generally).

In Riley v. California the Supreme Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone.  The Court readily admitted that its decision will impact law enforcement’s ability to combat crime.  But the Court reminds readers that privacy comes at a cost and warrants are faster and easier to obtain now than ever before.

Police searched David Riley’s cell phone after he was arrested on gun charges and found evidence of gang activity.  In a second case, police arrested Brima Wurie for selling drugs and used his cell phone to figure out where he lived—where they found more drugs and guns.

The Fourth Amendment requires police to obtain a warrant before they conduct a search unless an exception applies.  The exception at issue in this case is a search incident to a lawful arrest.

In the 1969 case of Chimel v. California the Court identified two factors that justify an officer searching an arrested person:  officer safety and preventing the destruction of evidence.  Four years later in United States v. Robinson the Court held that police could search a cigarette pack found on Robinson’s person despite the absence of these two factors.  The Court noted that “[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.”

The Court declined to extend Robinson to searches of data on cell phones.  Applying the first Chimel factor the Court observed that “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”  The Court also was not convinced that destruction of data through remote wiping (third party deletion of all data) or data encryption (an unbreakable password) were prevalent problems.  Even if they were, law enforcement could address both of them.

To the argument that cell phones are “materially indistinguishable” from other items on an arrestee’s person that lower courts have allowed police to search without warrants, like wallets and purses, the Court responded:   “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.  Both are ways of getting from point A to point B, but little else justifies lumping them together.”  Cell phones are “minicomputers” with an “immense storage capacity.”

Finally, the Court stated that the exigent circumstances exception may justify a warrantless search, for example, “to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.”

This case will be discussed in the State and Local Legal Center’s (SLLC) FREE Supreme Court Review CLE webinar, register here, and the SLLC’s FREE Supreme Court Police Cases webinar, register here.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Utility Air Regulatory Group v. EPA: One Less Thing for Cities to Worry About

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Had Utility Air Regulatory Group v. EPA gone the other way it would be a big deal for cities.  But it didn’t.  Cities own many small stationary sources that emit greenhouse gases and will benefit from not having to obtain permits for them.

The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.).  In 2007 in Massachusetts v. EPA the Court held EPA could regulate greenhouse gases emissions from new motor vehicles.  As a result of that case, EPA concluded it was required or permitted to apply permitting requirements to all stationary sources that emitted greenhouse gases in excess of statutory thresholds.

In Utility Air Regulatory Group v. EPA the Court held 5-4 that EPA cannot require stationary sources to obtain Clean Air Act permits only because they emit greenhouse gases.  But, the Court concluded 7-2, EPA may require “anyway” stationary sources, which have to obtain permits based on their emissions of other pollutants, to comply with “best available control technology” BACT emission standards for greenhouse gases.  Local governments own many small stationary sources that emit greenhouse gases and will benefit from not having to obtain permits for them.

The Court reasoned that permitting all newly covered stationary sources for greenhouse gas emissions “would place plainly excessive demands on limited governmental resources is alone enough reason for rejecting it.”  EPA’s regulations would increase the number of permits by the millions and the cost of permitting by the billions.  Small sources like retail stores, offices, apartment buildings, shopping centers, schools, and churches would be covered.  States, as permitting authorities, would bear part of the burden by having to hold hearings and grant or deny permits within a year.

To avoid the result described above, EPA issued the “Tailoring Rule,” which increased the permitting threshold for greenhouse gases from 100 or 250 tons per year to 100,000 tons per year initially.  The Court concluded EPA “has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”

Finally, Court held if a stationary source is already being regulated because of its emissions of other pollutants it may be subject to BACT emission standards for greenhouse gases. “Even if the text [of the Clean Air Act] were not clear, applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable.”

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Lane v. Franks Leaves Local Governments Holding their Breath

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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.

But what about the much more likely scenario:  An employee provides truthful sworn testimony, compelled by a subpoena, which is part of an employee’s ordinary responsibilities?  The Court explicitly says it doesn’t say.

Edward Lane was a program director at a public community college in Alabama.  He fired state legislator Suzanne Schmitz because she was on his payroll but wasn’t doing any work.  Lane testified about why he fired her at a grand jury indictment and two criminal trials that resulted in her conviction for theft and mail fraud.  Meanwhile, Lane’s program experienced “considerable budget shortfalls” and he was laid off.  Lane claimed he was fired in retaliation for his testimony in violation of the First Amendment.

The First Amendment protects public employee speech made as a citizen on a matter of public concern.  In 2006 in Garcetti v. Ceballos the Court held that when public employees speak pursuant to their official job duties they are speaking as employees and not as citizens for First Amendment purposes.  Lane v. Franks provided the Court its first opportunity to apply Garcetti v. Ceballos.

The Eleventh Circuit concluded Lane’s speech wasn’t citizen speech protected by the First Amendment.  Even though Lane wasn’t routinely subpoenaed as part of his official job duties, what he testified about he learned at his job.

The Supreme Court disagreed.  The Court described subpoenaed speech as “quintessential” citizen speech because anyone who testifies has an obligation to tell the truth.  And in this case it was undisputed that Lane’s ordinary job duties did not include testifying in court proceedings, meaning Lane wasn’t speaking as an employee when he testified.   “[T]he mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee-rather than citizen-speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

As mentioned above, significantly, the Court did not decide whether the First Amendment protects truthful subpoenaed speech made as part of a public employee’s ordinary job duties.   As Justice Thomas pointed out in his concurring opinion, for some public employees like police, crime scene technicians, and laboratory analysts, “testifying is a routine and crucial part of their employment duties.”

Finally, the Court granted college President Steve Franks qualified immunity concluding that Eleventh Circuit and Supreme Court precedent did not preclude him for concluding that he could fire Lane because of Lane’s testimony under oath and outside the scope of his ordinary job responsibilities.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Makes Some Superfund Cases Harder to Bring

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Has your city even been involved in Superfund litigation either as a plaintiff or a defendant?  Or may your city be involved in such a case in the future?  If so, the Supreme Court decided a case that in some states will shorten the period of time plaintiffs can bring environmental contamination cases.

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.  So homeowners’ state law claims for water contamination against an electronics manufacturer will be dismissed.

Five states have repose periods (Alabama, Connecticut, Kansas, Oregon, and North Carolina).  Additional state legislatures may adopt them in response to this decision.  Statutes of repose cut both ways for cities involved in environmental cleanup litigation.  In some instances a cities may be accused of being the contaminator.  In other instances a city may be trying to recover from a non-government contaminator.

The Environmental Protection Agency told North Carolina homeowners in 2009 that their well water was contaminated, allegedly by CTS Corporation, which had sold its electronics plant that had been on or near their property, in 1987.  The homeowners brought a state-law nuisance claim.  North Carolina’s statute of repose prevents a defendant from being sued for a tort more than 10 years after the defendant’s last culpable act, here 1987.  CERCLA was enacted to promote “the timely cleanup of hazardous waste sites.”  Section 9658 explicitly preempts statutes of limitations applicable to certain state-law tort claims and begins the statute of limitations when the plaintiff discovers that a harm was caused by contamination.

The Court held Section 9658 does not preempt statutes of repose.  The Court began its analysis by explaining the difference between statutes of limitations and statutes of repose.  Statutes of limitations create “a time limit for suing in a civil case, based on the date when the claim accrued.”  Statutes of repose bar claims based on the date of the defendant’s last culpable act or omission.  Statues of limitations encourage plaintiffs to diligently prosecute known claims.  Statues of repose effectuate a legislative judgment that a defendant should be free from liability after a specific period of time.

The Court noted that while Section 9658 uses the term “statutes of limitations” four times, it never uses the term “statutes of repose.” While the Court concluded this isn’t dispositive, “other features of the statutory text further support the exclusion of statutes of repose.”  These include that Section 9658 describes the covered period in the singular, assumes a claim exists (statues of repose can prohibit a cause of action from coming into existence), and allows for equitable tolling (pausing) (only available under statutes of limitations).

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.