Supreme Court Rules No Pay for Passing Through Security Screenings

The Supreme Court has ruled that their employers are not required to compensate them.

Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders. Their employer, Integrity Staffing Solutions, Inc., required its hourly workers to undergo a security screening before leaving the warehouse each day. Busk and Castro claimed that they were entitled to compensation for this time, and subsequently took their argument to court.

In the case of Integrity Staffing Solutions v. Busk, the Supreme Court ruled unanimously that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend undergoing security screenings. The ruling has significant impact on employers as well as employees working in courthouses, correctional institutions and other environments where security screenings are prevalent.

Under the FLSA, employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity. According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” The Court concluded that security screenings were not intrinsic to retrieving and packing products, and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work.

The SLLC’s amicus brief made similar arguments to those the Court adopted. This case is a significant victory for local governments who will now not be faced with higher payroll costs for employee security screenings or a mandate to reduce screenings to a de minimis amount.

James Ho, Ashley Johnson and Andrew LeGrand, of the law firm Gibson, Dunn & Crutcher in Dallas, TX, wrote the SLLC’s brief, which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the U.S. Conference of Mayors, the International Municipal Lawyers Association, the Government Finance Officers Association, the National Public Employer Labor Relations Association and the International Public Management Association for Human Resources.

First (Only?) Environmental Case of the Supreme Court’s Term is a Big One

This coal-fueled power plant

This coal-fired power plant is excited to receive its 15 minutes of fame when the Supreme Court rules on a complex environmental case later this term.

The consolidated cases of Michigan v. Environmental Protection Agency, Utility Air Regulatory Group v. Environmental Protection Agency and National Mining Association v. Environmental Protection Agency challenge a 2012 Environmental Protection Agency (EPA) regulation intended to limit mercury and other emissions from mostly coal-fired power plants.

Before regulating emissions from electric utilities, the Clean Air Act (CAA) requires the EPA Administrator to find that regulation is “appropriate and necessary” based on a public health hazards study. The simple legal question in this complicated case is whether the EPA unreasonably refused to consider costs in making its determination that regulation was “appropriate.”

In 1990 Congress required the EPA to identify stationary sources for 189 hazardous air pollutants and adopt maximum achievable control technology standards (MACT) for limiting their emissions. But the CAA regulates emissions from electric utilities differently than from other stationary sources. Before the EPA may regulate electric utilities under the MACT program, it must perform a health hazards study and determine whether regulation of them is appropriate and necessary.

In 2000, the EPA determined it would regulate mercury and other emissions from electric utilities, but it reversed course in 2005. Then in 2012, the agency issued the final rule challenged in this case which concluded that regulating electric utilities was appropriate and necessary. The EPA “rejected the 2005 interpretation that authorizes the Agency to consider other factors (e.g., cost).”

The D.C. Circuit agreed with the EPA that it was not required to consider costs. “Appropriate” isn’t defined in the relevant section of the CAA and dictionary definitions of the term don’t mention costs.  Throughout the CAA “Congress mentioned costs explicitly where it intended the EPA to consider them.”

A dissenting judge pointed that the cost of regulation in this case is nearly $10 billion dollars annually and opined that the cost of complying will “likely knock a bunch of coal-fired electric utilities out of business and require enormous expenditures by other coal- and oil-fired electric utilities.”

States are involved in this case on both sides. During its last term, the Supreme Court ruled on two significant Clean Air Act cases: EPA v. EME Homer City Generation, involving the CAA’s Good Neighbor Provision, and Utility Air Regulatory Group v. EPA, involving greenhouse gases and stationary sources.

Does the ADA Apply to Arrests?

The Supreme Court has agreed to review a Ninth Circuit decision ruling that individuals with mental illnesses must be accommodated under the ADA when being arrested.

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The Fourth Amendment applies to arrests, no question about it.  What about the Americans with Disabilities Act (ADA)?  Specifically, do individuals with mental illnesses have to be accommodated under the ADA when being arrested?  The Ninth Circuit said yes and the Supreme Court has agreed to review its decision in City & County of San Francisco v. Sheehan.

When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated.  When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her.

Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.

Sheehan argued that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room.  Her proposed accommodations included:  respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation

The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests.  The ADA applies broadly to police “services, programs, or activities,” which the Ninth Circuit interpreted to mean “anything a public entity does,” including arresting people.  The court refused to dismiss Sheehan’s ADA claim against the city reasoning that whether her proposed accommodations are reasonable is a question of fact for a jury.

The Ninth Circuit also concluded that reentry into Sheehan’s room violated the Fourth Amendment because it was unreasonable.  Although Sheehan needed help, “the officers had no reason to believe that a delay in entering her room would cause her serious harm, especially when weighed against the high likelihood that a deadly confrontation would ensue if they forced a confrontation.”

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights.  Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Ninth Circuit refused to grant the officers qualified immunity related to their reentry:  “If there was no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known that this use of force was excessive.”  The Court also has agreed to review the Ninth Circuit’s decision on qualified immunity.

Soronen_Pic (2)About the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Opinions? Already?!

Despite being early in the term, the Supreme Court has already issued two opinions involving state and local government.

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As the Supreme Court’s term only began on October 6 it is a little early for the Court to be issuing opinions except in the instance of per curiam (unauthored) opinions where the Court didn’t hear oral argument.  The Court did just that this week.  Both of the cases involve state and local government.

In Carroll v. Carman the Court held that the Third Circuit improperly denied qualified immunity to a police officer who “knocked and talked” to a homeowner at his back door, rather than his front door, without a warrant.

The “knock and talk” exception to the Fourth Amendment’s warrant requirement allows police officers to knock on a resident’s door and speak to its inhabitants as any other person would.  Officer Carroll knocked on the Carmans’ back door, which he described as looking like a customary entryway, in search of a man who had stolen a car and two loaded guns.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional or federal statutory rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Court concluded that it wasn’t clearly established that the “knock and talk” exception only applied to knocks at the front door.  The only circuit precedent the Third Circuit pointed to didn’t hold that knocking on the front door is required before officers go onto other parts of the property open to visitors.  And other federal and state courts rejected the Third Circuit’s approach.

Notably the Court declined to decide the underlying legal issue in this case of whether police can “knock and talk” at any entrance open to visitors rather than only the front door.

In Johnson v. City of Shelby, Mississippi the Court held that police officers did not have to invoke 42 U.S.C. § 1983 in their constitutional claim against Shelby.

42 U.S.C. § 1983 is a vehicle for private parties to sue state and local governments for constitutional violations.  In this case police officers alleged in their complaint that the city’s board of aldermen fired them for bringing to light the criminal activities of one alderman in violation of their Fourteenth Amendment due process rights.

The Fifth Circuit dismissed the officers’ complaint because they didn’t invoke § 1983 reasoning that “[c]ertain consequences flow from claims under § 1983, such as the unavailability of respondeat superior [employer] liability, which bears on the qualified immunity analysis.”  The Supreme Court pointed out that the Fifth Circuit was confused in its perception of the officers’ suit which was against the city; unlike a municipal officer, a city cannot invoke qualified immunity.  More generally, the Court stated that federal pleading rules don’t require a complaint to be dismissed because it imperfectly states the legal theory supporting it.

Soronen_Pic (2)About the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Federal Agency Notice-And-Comment: Supreme Court to Decide When It’s Required

State and local governments often regulate in the same space as federal agencies and are often regulated by federal agencies.

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Regulations and rules.  What is the difference?  Under the Administrative Procedures Act (APA) regulations interpret statutes and federal agencies adopt them only after notice-and-comment.  Rules interpret regulations and are promulgated without-notice and-comment.  But what if an agency changes a rule;   should it first seek notice and comment?  The Supreme Court will decide this issue in Perez v. Mortgage Bankers Association.

The State and Local Legal Center (SLLC) argues yes in its amicus brief, which agrees with the lower court that significant changes to an interpretation of a regulation amounts to effectively changing the regulation, which requires notice-and-comment.  Local governments frequently have been surprised by interpretive rules that have changed regulations.  NLC joined the SLLC’s brief.

In 2006 the Department of Labor (DOL) issued an opinion letter stating that mortgage loan officers who work more than 40 hours a week were exempt from overtime under the Fair Labor Standards Act.  In 2010 DOL withdrew the opinion letter in an “Administrator’s Interpretation” that reached the opposite conclusion.  Since 1997 the D.C. Circuit’s rule has been that if an interpretive rule is definitive and an agency makes a significant change to it, the agency must first conduct notice-and-comment rulemaking.

State and local governments often regulate in the same space as federal agencies and are often regulated by federal agencies.  The SLLC’s amicus brief argues that requiring notice-and-comment for significant changes to interpretations of regulations will maintain the balance between agency discretion and reliance interests the APA was designed to protect.  It also argues that allowing state and local governments to weigh in on problematic interpretations is far more efficient than state and local governments challenging them through litigation.  And allowing greater state and local participation in the process will avoid or at least limit the risk to federalism posed by ever-expanding agency authority.

The SLLC’s brief discusses a number of examples where federal agencies have changed positions in interpretive rules.  In 1993, DOL issued a series of opinion letters concluding that career firefighters who volunteered their services to private organizations had to be paid extra by whatever public entity employed them.  DOL then changed its mind in 2001.  And in a 2011 guidance letter the Environmental Protection Agency disallowed wastewater discharge “mixing zones,” while regulations previously allowed them.  This guidance letter was successfully challenged in the Eighth Circuit in Iowa League of Cities v. EPA.

SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers AssociationGovernment Finance Officers Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.

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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 Long Conference Results Are In!

During the Supreme Court “long conference,” the Court granted a total of 11 petitions; at least four of those cases are relevant to local government.

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Last Monday’s Supreme Court “long conference” did not disappoint. The Supreme Court granted a total of 11 petitions. 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

The issue in EEOC v. Abercrombie & Fitch Stores is whether an employer can violate Title VII for failing to hire someone because of a “religious observance and practice” that the employer knows about—but wasn’t told about directly by the applicant. The applicant in this case wore a hajib to her interview with Abercrombie & Fitch. When Abercrombie didn’t hire her because her hajib violated their “no caps” policy she sued. The Tenth Circuit ruled in favor of Abercrombie because the applicant did not inform Abercrombie she needed a religious accommodation (though it was obvious).

Confrontation Clause

In Ohio v. Clark the Supreme Court will decide whether testimony of head start teachers about what a three year old boy told them when they asked him who hurt him was admissible in his father’s assault trial. The Ohio Supreme Court held that admitting their testimony, when the boy did not testify due to his young age, violated the Confrontation Clause because the boy’s statements were “testimonial.” The court reasoned that the teachers were acting as law enforcement agents when they questioned him because they have mandatory child abuse reporting obligations and the boy was not in the midst of an ongoing emergency when he was questioned.

For more information about these cases and other Supreme Court case relevant to states and local government previously accepted please attend the SLLC’s FREE Supreme Court Preview webinar on October 16.

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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.

The Supreme Court and Simple Math

freight

Its simple math. Really. But will the Supreme Court do it? The lower court 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 a State and Local Legal Center (SLLC) Supreme Court 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.

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. First, it could compare the tax treatment of rail carriers to all commercial and industrial taxpayers in the state (who all pay sales tax) instead of only railroad competitors. Second, the Court could ignore the labels of sales and excise tax and compare the amount railroads and their competitors pay in total taxes. Third, the Court could note the relevant differences between railroads and their competitors. For example, water carriers traditionally have been exempt from all taxes on diesel fuel because of constitutional concerns about taxing vessels in navigable waters.

Finally the SLLC brief points out that “[r]uling in favor of CSX would threaten States’ ability to take in tax revenue, an ability already impeded by current economic conditions. This Court must not allow 4-R to shield CSX—a $12 billion nationwide corporation—and other rail carriers from paying millions of dollars in taxes that fund vital public services. Congress did not intend for 4-R to enrich large corporations by impoverishing the States.”

All of the Big Seven, including NLC, joined the SLLC brief along with SLLC associate members the International Municipal Lawyers Association and the Government Finance Officers Association. Sarah Shalf of the Emory Law School Supreme Court Advocacy Project wrote the SLLC brief.

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.