SCOTUS Rules Against Army Corps of Engineers in Waters of the U.S. Case

In a win for local governments, the Supreme Court concluded that jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act can be reviewed in court immediately. In some instances, this ruling will allow local governments to avoid the permitting process, which is time-consuming and costly.

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Per the Clean Water Act, “waters of the United States” (WOTUS) are federally regulated. Property owners may seek an approved jurisdictional determination from the U.S. Army Corp of Engineers definitively stating whether such waters are present or absent on a particular parcel of land such as the wetlands pictured above. (Getty Images)

The Supreme Court does not (yet) have the issue of whether the new regulations defining “waters of the United States” exceed the Environmental Protection Agency (EPA) authority. In the meantime, in United States Army Corp of Engineers v. Hawkes the Court ruled unanimously that an approved jurisdictional determination that property contains “waters of the United States” may be immediately reviewed in court. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing in favor of this result.

This case involves three companies that wanted to mine peat from wetland property in Minnesota. The Corp issued an approved JD that the property contained WOTUS because its wetlands had a “significant nexus” to a river located about 120 miles away.

Per the Administrative Procedures Act, judicial review may be sought only from final agency actions. Per Bennett v. Spear (1997), agency action is final when it marks the consummation of the agency’s decision making process and when legal consequences flow from the action.

The Court, in an opinion written by Justice Chief Roberts, concluded that an approved JD is a final agency action subject to court review because it meets both conditions laid out in Bennett. The Corp didn’t argue that an approved JD is tentative; its regulations describe approved JDs as “final agency action” valid for five years. Approved JDs give rise to “direct and appreciable legal consequences,” the Court reasoned, because the Corp is bound by them for five years. And a “longstanding memorandum of agreement” between the Corp and EPA binds the EPA. So, per an approved JD, the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, practically speaking, grant or deny a property owner a five-year safe harbor from such proceedings.

The SLLC amicus brief pointed out states and local governments (as landowners and partners with the business community responsible for economic development and capital infrastructure) would be negatively affected if judicial review of JDs were not possible. The Court agreed that neither alternative to judicial review is adequate. Proceeding without a permit could lead to civil penalties of up to $37,500 a day; seeking a permit can be “arduous, expensive, and long.”

Interestingly, in three separate concurrences (each about a page long), Justices Kennedy, Thomas, Alito, Kagan, and Ginsburg debate whether an approved JD really is binding on EPA and whether it matters. Justice Kennedy warns that if it isn’t, “the Act’s ominous reach would again be unchecked by the limited relief the Court allows today.” In light of this discussion, the Corp and EPA are likely to clarify the nature of their agreement.

The Council of State GovernmentsNational Association of CountiesNational League of CitiesUnited States Conference of MayorsInternational City/County Management Association, and the International Municipal Lawyers Association joined the SLLC amicus brief, which was written by Foley & Lardner attorneys Joe Jacquot, Linda Benfield, Richard Still, Michael Leffel, and Sarah Slack.

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.

Could the Online Sales Tax Question Be Headed to the Supreme Court?

A new South Dakota law may end up determining whether most U.S. residents are required to pay sales taxes on their online purchases.

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In March 2015, Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” A new challenge coming out of South Dakota might be just the case Justice Kennedy had in mind. (Getty Images)

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. Justice Kennedy criticized Quill in Direct Marketing Association v. Brohl for many of the same reasons the State and Local Legal Center stated in its amicus brief. Specifically, internet sales have risen astronomically since 1992, and states are unable to collect most taxes due on sales from out-of-state vendors.

While a number of state legislatures have considered or passed legislation requiring remote vendors to collect sales tax, South Dakota’s law is the first to generate a lawsuit. On April 28, South Dakota filed a declaratory judgment action asking a state circuit court to declare its law constitutional. The next day the American Catalog Mailers Association and Netchoice filed a declaratory judgment action asking for the opposite result.

South Dakota acknowledges that, for it to win, the circuit court will have to abrogate Quill v. North Dakota, a step that any lower court would be more than reticent to take. All lower courts are required to follow rulings of the United States Supreme Court.

Numerous features of the South Dakota law indicate it is fast-tracked for U.S. Supreme Court review. First, the law requires the circuit court to act on the state’s declaratory judgment “as expeditiously as possible.” Second, any appeal must only be made to the South Dakota Supreme Court, who must also hear the case “as expeditiously as possible.”

While the law is being litigated, South Dakota cannot require out-of-state vendors to collect sales tax.

South Dakota may very well lose before both the state circuit court and the South Dakota Supreme Court. For U.S. Supreme Court review, four of the nine Supreme Court Justices must agree to hear the case. Then South Dakota needs five votes to win.

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 Important Immigration Case

Federal immigration measures have a local impact.

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NLC has joined an amicus brief asking the Supreme Court to consider that, because undocumented immigrants are integral members of our communities, the enjoined deferred action programs protect vital local interests and that, without them, millions of families face the threat of deportation, destabilizing our communities and jeopardizing the welfare of families and children. (Getty Images)

It was a different crowd today at the Supreme Court. The number of children on the courthouse steps may have exceeded the number of adults, and the voices on the microphones were speaking English and Spanish.

United States v. Texas is about different things for different people. For some it is about keeping families together, for others executive overreach, and for about half of the states it is about “standing” to sue the federal government.

For the National League of Cities and the U.S. Conference of Mayors, per the amicus brief they joined, which was filed by over 100 mayors and local government officials, it is about “undocumented immigrants [being] integral members of our communities.”

The legal issue in this case is whether the President’s Deferred Action for Parents of Americans (DAPA) program, which allows certain undocumented immigrants who have U.S. citizen children to stay and work temporarily in the United States, violates federal law.

Before getting to this question, the Court has to decide whether any of the 26 states challenging DAPA have “standing” to sue the federal government in the first place. 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.

The more conservative Justices, led by Justice Roberts, seemed skeptical of the United States’ argument that states lack standing. Arguing on behalf of the United States, the Chief Justice asked Solicitor General Don Verrilli whether the federal government’s position that, if a state doesn’t want to incur the cost of providing DAPA participants a license, it could just change its law and stop doing so is a “Catch-22.” If a state did so, the federal government would very likely sue the state for discrimination.

Justice Kagan led the Court’s more liberal Justices, who were questioning whether the DAPA program exceeds federal immigration law. Both sides agreed, she pointed out, that the federal government could decide not to deport a class of low priority undocumented immigrants, which is part of what DAPA does. So the problem isn’t with DAPA but with the Immigration Reform and Control Act of 186, which allows some people not lawfully present in the United States to work and receive other benefits. But Texas and the other states in this case sue under DAPA, not the federal immigration law.

Oral argument, and conventional wisdom, indicate that the Court may be split 4-4 on both issues in this case. We probably won’t know for sure before the end of June.

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.

Local Governments May (Continue to) Redistrict Based on Total Population

In what has been described as the most important “one-person, one-vote” case since the Supreme Court adopted the principle over 50 years ago, the Court held that states may apportion state legislative districts based on total population. Local governments may do the same.

Redistricting is the process of drawing United States electoral district boundaries. (Image courtesy of The Natomas Buzz)

Redistricting is the process of drawing United States electoral district boundaries. (Image courtesy of The Natomas Buzz)

The Court’s opinion in Evenwel v. Abbott is unanimous. All 50 states currently use total population to design state legislative districts; only seven adjust the census numbers “in any meaningful way.”

In Reynold v. Sims (1964) the Court established the principle of “one-person, one-vote” requiring state legislative districts to be apportioned equally so that votes would have equal weight. The question in this case is: Which population is relevant, total population or voter-eligible population? Total population includes numerous people who cannot vote – notably, non-citizens and children.

Following the 2010 census Texas redrew its State Senate districts using total-population. The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent.

Justice Ginsburg’s majority opinion concluding Texas may redistrict using total population is “based on constitutional history, this Court’s decisions, and longstanding practice.”

Regarding constitutional history, Section 2 of the 14th Amendment explicitly requires that the U.S House of Representatives be apportioned based on total population. “It cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.”

Regarding past decisions, in no previous cases alleging a state or local government failed to comply with “one-person, one-vote” had the Court determined if a deviation was permissible based on eligible- or registered-voter data.

And finally, states and local governments redistricting based on total population is a settled practice. “Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.”

Despite Texas’s urging the Court did not decide whether states may redistrict using voter-eligible population. It seems only a matter of time until the Court will decide whether state legislatures and local governments must redistrict based on total-population data.

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.

2016 Supreme Court Cases That Could Affect Your City

Our full roundup of the latest Supreme Court developments covers a wide variety of cases relevant to cities.

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(Getty Images)

2016 is looking to be a big year for the Supreme Court. Here’s what cities need to know about the issues under consideration by the Court this year.

The Supreme Court’s 2016 Docket is Full (and Over Flowing)

The Friday before and the Tuesday after Martin Luther King, Jr. Day, the Supreme Court accepted a total of nine cases, including a challenge to the President’s executive order allowing undocumented parents of children who are citizens to remain in the United States.

United States v. Texas will be heard this term and decided by the end of June. Oral argument will be held next term in some of the other cases accepted mid-January.

Four of the eight cases accepted, in addition to the immigration case, affect state and local governments. While I will write more about each of these cases later, here’s a brief synopsis for now.

Manuel v. City of Joliet

Can federal malicious prosecution claims be brought under the Fourth Amendment? In 1994, in Albright v. Oliver, the Supreme Court held that they may not be brought under the Fourteenth Amendment. While numerous federal circuits have held that federal malicious prosecution claims are viable under the Fourth Amendment, the Seventh Circuit disagrees. In this case, a lab report cleared Elijah Manuel of possessing ecstasy but charges against him were not dismissed for over a month.

Murr v. Wisconsin

This case involves a possible taking. The Murrs owned contiguous lots which together were just shy of an acre. An ordinance prohibited the individual development or sale of adjacent lots under common ownership that are less than an acre total. The Murrs wanted to use or sell the lots separately. They claim the ordinance resulted in an unconstitutional uncompensated taking. To determine whether a taking occurred, they argue each plot should be looked at separately.

McDonnell v. United States

A jury found former Virginia Governor Bob McDonnell guilty of violating federal fraud statutes. He was accused of having accepted money and lavish gifts in exchange for helping a company secure university testing for a dietary supplement. McDonnell claims he didn’t violate the statutes because he didn’t engage in “official acts” to help the company. He merely extended to it “routine political courtesies: arranging meetings, asking questions, and attending events.” If “official acts” includes such “routine political courtesies,” McDonnell argues the statutes are unconstitutional.

Trinity Lutheran Church of Columbia v. Pauley

The issue in this case is whether Missouri’s “super-Establishment Clause” trumps the federal Free Exercise of Religion Clause. Missouri refused to give Trinity Church preschool a grant to purchase recycled tires to resurface its playground because Missouri’s constitution prohibits aid directly or indirectly to churches. In Locke v. Davey (2004), the Supreme Court held that Washington State’s “super-Establishment Clause” prohibiting post-secondary students from using public scholarships to receive a degree in theology did not violate the federal Free Exercise Clause. This case gives the Court an opportunity to expand or limit Locke v. Davey outside of the context of state aid for training clergy.

SCOTUS to Decide Immigration Deferred Action Case

In an already action-packed term, the Supreme Court has definitively secured this term’s place in history by agreeing to decide whether the President’s deferred action immigration program violates federal law or is unconstitutional. The Court will issue an opinion in United States v. Texas by the end of June 2016.

The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States. About 5 million people are affected.

Twenty-six states sued the United States and won before the Fifth Circuit.

The Court will decide four legal issues 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 DAPA is arbitrary and capricious, the Fifth Circuit reasoned, 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.”

The lower court did not address the question of whether the DAPA program is constitutional. Regardless, the Supreme Court has agreed to decide whether or not it violates the Constitution’s Take Care Clause, which states that the president shall “take care that the laws be faithfully executed.” The states argue that, because the DAPA is contrary to federal law, the president is failing to “take care” that federal law is followed, as the Constitution requires.

Supreme Court Sends Stun Gun Case Back to the Lower Court

In a per curiam (unauthored) opinion, which concurring Justices Alito and Thomas call “grudging,” the U.S. Supreme Court has ordered the Supreme Judicial Court of Massachusetts to decide again whether Massachusetts’s stun gun ban is constitutional. Currently eight states and a handful of cities and counties ban stun guns.

The highest state court in Massachusetts held that the Second Amendment doesn’t protect stun guns because they weren’t in common use at the time the Second Amendment was enacted, they are “unusual” as “a thoroughly modern invention,” and they aren’t readily adaptable for use in the military.

In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment provides individual the right to possess a firearm to use for lawful purposes, including for self-defense in the home. In Heller, the Supreme Court concluded that the Second Amendment extends to arms “even those that were not in existence at the time of the founding.”

In its two-page decision in Caetano v. Massachusetts, the Supreme Court notes that the Supreme Judicial Court of Massachusetts ignores this “clear statement” in Heller. A gun can’t be unprotected as “unusual” just because it is a modern invention for the same reason. And Heller “rejected the proposition ‘that only those weapons useful in warfare are protected.’”

Justices Alito and Thomas would have held that the Massachusetts law is unconstitutional.

This case comes at an interesting time. Supreme Court nominee Merrick Garland has been criticized by some as being “anti-gun.” The D.C. Circuit Court of Appeals initially decided Heller. A three-judge panel not including Merrick held that Washington, D.C.’s handgun ban was unconstitutional. Merrick voted in favor of an en banc review (i.e., all of the D.C. Circuit Court judges would rehear the case). In Heller, the Supreme Court agreed with the D.C. Circuit Court of Appeals.

Earlier this term, the Supreme Court refused to review Friedman v. City of Highland Park, where the Seventh Circuit held that the City of Highland Park could ban assault weapons and large capacity magazines.

It is only a matter of time until the Court decides another big gun case. But this probably won’t happen until the Court’s current vacancy is filled.

State and Local Legal Center Files Supreme Court Amicus Brief in Drunk Driving Cases

Cities and other interested parties will hold their breath (pun intended) as the Court contemplates a trio of drunk driving cases. Fourth Amendments cases are often closely divided, so the absence of Justice Scalia may make a difference.

State implied consent statutes criminalizing a person’s refusal to take a warrantless chemical blood alcohol test upon suspicion of drunk driving are constitutional, argues the State and Local Legal Center (SLLC) in a Supreme Court amicus brief.

All 50 states have adopted implied consent laws requiring motorists as a condition of driving in the state to consent to a blood alcohol content (BAC) test if they are suspected of drunk driving. If motorists refuse to consent, typically their driver’s license is temporarily suspended. NCSL reports that 15 states also currently criminalize refusal to consent. Criminal penalties typically include fines and jail time.

In Missouri v. McNeely, (2013) the Supreme Court held that police generally have to obtain a warrant to conduct a BAC. So the argument goes, it is unconstitutional to criminalize the refusal to take a BAC test if a warrant was required to conduct the test but not obtained.

The Court accepted three cases, Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi from two different states (Minnesota and North Dakota). The lower courts held the implied consent statutes were constitutional.

Consent is an exception to the Fourth Amendment’s warrant requirement. The Petitioners argue, among things, that the consent exception does not apply to criminal implied consent statutes because consent isn’t obtained voluntarily. Driving is a necessity, so consent can only be obtained through duress or coercion.

The SLLC amicus brief points out that “drunk driving imposes a terrible toll on America, killing thousands and shattering the lives of tens of thousands of others each year.” The SLLC brief argues that, while driving is important to many Americans, it is a voluntary privilege. So, agreeing to BAC testing is voluntary as well. And criminal implied consent laws are reasonable because “they have been in effect across the Nation for decades, and that this Court has repeatedly upheld them against challenge and referred to them only in approving terms.”

Greg Garre, Jonathan Ellis, and Ben Snyder of Latham Watkins wrote the SLLC amicus brief, which was joined by the Council of State Governments, National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and the International Municipal Lawyers Association.

SLLC Files Supreme Court Amicus Brief in a WOTUS Case (not THE WOTUS case)

THE Waters of the U.S. (WOTUS) case, involving a challenge to the new regulations redefining waters of the United States, isn’t before the Supreme Court just yet.

The issue in this particular case, Hawkes v. U.S. Army Corp of Engineers, is whether a court may review an Army Corp of Engineers “jurisdictional determination” (JD) that property contains “waters of the United States” (WOTUS) per the Clean Water Act. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of court review.

Hawkes wanted to mine peat from wetland property in Minnesota. The Army Corp of Engineers issued a JD that the property contained WOTUS because it was connected by culverts and unnamed streams to a traditional navigable water way about 120 miles away.

To commence mining, Hawkes would have had to obtain a (costly and time consuming) permit unless a court would review (and overturn) the JD. So Hawkes sought court review.

Per the Administrative Procedures Act, judicial review may be sought only from final agency actions. Per Bennett v. Spear (1997), agency action is final when it marks the consummation of the agency’s decision making process and when legal consequences flow from the action.

The Eighth Circuit concluded that Hawkes may challenge the JD in court immediately and not wait until the permit is denied to sue.

The court found a JD is the consummation of the Corp’s decision making process because the Corp describes an approved JD as a “definitive, official determination” that there are or aren’t WOTUS on a site. A JD may be relied on for five years.

The court concluded that “rights or obligations have been determined” and “legal consequences flow” from a JD because Hawkes’ two choices following it are cost prohibitive. It can complete the permitting process which will be costly, time consuming, and – in this case, the Corp already told them – futile. Or Hawkes may proceed without a permit and risk an enforcement action. But doing so after obtaining an unfavorable JD could expose Hawkes to criminal monetary penalties or imprisonment for knowingly violating the Clean Water Act.

The SLLC amicus brief points out that states and local governments will be negatively affected in their various roles if judicial review of JDs is not possible. As landowners, they face timing and cost burdens. If they choose to proceed with a project without a permit, they could lose federal grant funding necessary to complete the project where the grants require applicants to comply with all applicable federal laws. As a partner with the business community responsible for economic development and capital infrastructure planning, states and local governments need the certainty provided by prompt judicial review of JDs.

The Council of State Governments, National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and the International Municipal Lawyers Association joined the SLLC amicus brief, which was written by Foley & Lardner attorneys Joe Jacquot, Linda Benfield, Richard Still, Michael Leffel, and Sarah Slack.

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.

Public Sector Fair Share Laws Survive in 4-4 SCOTUS Decision

In a 4-4 tie, the Supreme Court affirmed a lower court’s decision upholding the legality of collective bargaining service fees for public sector employees who aren’t union members.

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In the 1977 case Abood v. Detroit Board of Education, the Court held that “fair share” service fees for public sector employees are legal. This morning’s ruling upheld that view. (Getty Images)

Friedrichs v. California Teachers Association could have turned public sector labor law upside down. In an unsurprising move the Supreme Court issued a non-precedential 4-4 opinion affirming the lower court’s decision by an equally divided Court. This opinion continues the status quo. Had Justice Antonin Scalia not passed away in February, this case almost certainly would have had a different outcome.

In Friedrichs v. California Teachers Association, the Court was contemplating overruling 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 vs. the Detroit Board of Education, public school teachers in Detroit had sought to overturn the requirement that they pay fees equivalent to union dues on the grounds that they opposed public sector collective bargaining and objected to the ideological activities of the union. The 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 basically, no free-riders are allowed.

In Knox v. SEIU (2012) and Harris v. Quinn (2014) – two recent cases in which 5-4 opinions were written by Justice Alito and joined by the other conservative Justices (including Justice Scalia) and Justice Kennedy – the Court was very critical of Abood.

The Supreme Court heard oral arguments in this case in January, and the five more conservative Justices seemed poised to overrule Abood. After Justice Scalia passed away, the Court had two choices, knowing it was divided 4-4:  wait for a ninth Justice to join the Court and rehear the case, or do what it just did: affirm the lower court’s decision.

The Ninth Circuit in a very brief opinion had refused to overrule Abood.

Given the uncertainty of when a new Justice will be confirmed and the lack of a circuit split on this issue, the Court’s decision was expected. If a more liberal Justice joins the Court, it is unlikely this issue will be brought before the Court again anytime soon.

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.

Justice Scalia’s Impact on Local Government – And What the Future Holds for Cities

Former Supreme Court Justice Antonin Scalia was generally supportive of local government, and his passing leaves many questions as to how the nation’s highest court will rule in upcoming cases affecting cities.

Supreme Court of the United States. (Getty Images)

If a Supreme Court case looks like it may result in a 4-4 decision, the Court now has two choices: wait for the ninth Justice to join the Court and rehear the case, or issue an unprecedented 4-4 decision that affirms the lower court decision. (Getty Images)

Justice Scalia’s death came at an uncertain time in our nation’s history, given the upcoming presidential election. Unsurprisingly, while some of the news coverage focused on the substance of his nearly 30-year career as a Supreme Court Justice, most news coverage discussed the challenges of replacing him.

The public knew Justice Scalia as a conservative, particularly on social issues like abortion, the death penalty and same-sex marriage. Attorneys will remember Justice Scalia as an “originalist” who believed that the Constitution should be interpreted as the founders intended and a “textualist” who interpreted laws by looking only at the words on the page. Court watchers admired Justice Scalia’s beautifully written, clear, and often colorful opinions.

But what was Justice Scalia’s impact on state and local government?

Noteworthy Cases

Justice Scalia will probably be most remembered for writing District of Columbia v. Heller (2008), in which he held that the Second Amendment protects an individual’s right to possess a gun for traditionally lawful purposes, such as self-defense, within the home.

Like most conservatives, Justice Scalia was often sympathetic to states’ rights. For example, in his dissenting opinion in the same-sex marriage cases, he criticized the Court for acting as a “super” legislature. And his dissenting opinion in Arizona v. United States (2012), involving challenges to Arizona laws designed to crack down on illegal immigration, rested on state sovereignty.

Like other conservative Justices, Justice Scalia also regularly supported property owners in land use and taking cases. For example, early on the bench, he wrote the Court’s opinion in Nollan v. California Coastal Communities (1987), holding that conditioning the granting of a building permit upon the applicants’ dedication of property to the public without compensation could amount to an unconstitutional taking.

Justice Scalia generally was supportive of state and local government in qualified immunity cases. Specifically, he wrote the Court’s opinion in Scott v. Harris (2007), which held that an officer using deadly force to stop a speeding motorist was entitled to qualified immunity.

When it came to Fourth Amendment searches, Justice Scalia’s jurisprudence was notably mixed. For example, he dissented from the Court’s decision in Maryland v. King (2013), upholding warrantless DNA testing of arrestees. But he also dissented from the Court’s decision in Los Angeles v. Patel (2014), holding that hotel registry ordinances allowing police inspections without pre-compliance judicial review violate the Fourth Amendment.

Amicus Briefs

The State and Local Legal Center (SLLC) filed amicus briefs before the Supreme Court the entire time Justice Scalia was a member of the high court. Amicus brief writers, perhaps above all, hope that the Justices will care about the implications that cases will have on their clients when rendering decisions and writing opinion.

Justice Scalia wasn’t one to turn a blind eye on how a case would affect state and local government. In fact, just last term in Los Angeles v. Patel, he cited the SLLC’s amicus brief in his dissenting opinion supporting the Los Angeles ordinance, noting that such ordinances and state statutes are common.

As far as the SLLC was concerned, Justice Scalia’s work wasn’t done. Just this month the SLLC filed an amicus brief asking the Court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies. Justice Scalia wrote the opinion in Auer v. Robbins (1997), holding that courts must defer to an agency’s interpretation of its own regulations. In Perez v. Mortgage Bankers Association (2015), Justice Scalia (and two other Justices) expressed skepticism about Auer.

What the Future Holds

(Wikimedia Commons)

Antonin Scalia was a Supreme Court Justice from 1986 until his death in 2016. (Wikimedia Commons)

So the million dollar question (other than who will fill Justice Scalia’s seat) is: What will happen to undecided Supreme Court cases heard or to be heard this term?

The short answer is that it depends, and in all instances isn’t entirely clear.

If a Supreme Court case looks like it will NOT result in a 4-4 decision, it will be decided as usual with only eight Justices.

If a case looks like it may result in a 4-4 decision, however, the Court now has two choices: wait for the ninth Justice to join the Court and rehear the case, or issue a non-precedential 4-4 decision that affirms the lower court decision.

SCOTUSblog publisher Tom Goldstein predicts that the Court will rehear 4-4 cases.

It is, of course, impossible to know which cases would have been 5-4 had Justice Scalia lived. But a good rule of thumb is that particularly important, controversial cases are often 5-4. Six cases this term meet just about any definition of important and controversial.

Let’s take a look at the five such cases affecting state and local government. Unsurprisingly, Justice Kennedy’s vote probably will be key in all of them.

  • Public Sector Unions

In Friedrichs v. California Teachers Association the Court will decide whether to overrule Abood v. Detroit Board of Education (1977), requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs.

Justices Scalia and Kennedy joined two previous Justice Alito opinions criticizing Abood. Unless Justice Kennedy has a change of heart or one of the other conservative Justices has second thoughts about overturning precedent regardless of how much he dislikes it, this case is likely to be reheard.

  • Immigration

In United States v. Texas the Court will decide whether the President’s deferred action immigration program violates federal law or is unconstitutional.

The stakes are the highest if the Court is 4-4 in this case. The federal government and the Supreme Court worked hard to make sure this case got on the docket this term because a new President could scrap the program. If this case is reargued, unless the new Justice joined the Court next fall, it seems unlikely the Court could render an opinion before January 2017.

  • One-person-one-vote

The issue in Evenwel v. Abbott is whether voting population must be the metric in ensuring that state and local legislative districts comply with the “one-person one-vote.”

Evenwell is considered the most important voting rights case in decades. Using voting population as the metric tends to favor more rural, Republican areas. This case seems ripe for rehearing unless Justice Kennedy sides with the liberals.

  • Abortion

The issue in Whole Women’s Health v. Cole is whether Texas’s admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions.

The conventional wisdom on abortion is that only Justice Kennedy’s votes is at play. If he is willing to strike down Texas’s laws this case will not be reheard. The fact that Justice Kennedy voted to prevent these laws from going into place before the Court decided to review the case indicates he may be skeptical of the laws, making a 4-4 vote less likely.

  • Affirmative action

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

More conservatives Justices are probably as likely to win this case with or without Justice Scalia. Justice Kagan is recused and Justice Kennedy is no fan of affirmative action. But the Court heard this case once before rendering a narrow 7-1 opinion against UT-Austin. You never know with cases involving race.

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.

What Might Obama’s Supreme Court Nomination Mean for Local Government?

Two factors could give us a better sense of how Judge Merrick Garland may view the interests of state and local government in cases: his state and local government experience, and his previous decisions.

As promised, President Barack Obama has nominated someone to fill the vacancy on the Supreme Court. (photo: Getty Images)

As promised, President Barack Obama has nominated someone to fill the vacancy on the Supreme Court: D.C. Circuit Court of Appeals Judge Merrick Garland. (photo: Getty Images)

If this were not an election year, Merrick Garland would be a surprising choice. He is known as a moderate, he is older (63), he is a white male, and he has been a judge on the D.C. Circuit Court of Appeals for almost 20 years. If this were not an election year, Senate Republicans would probably be racing to confirm him.

His nomination remains an interesting choice, though, and may leave many city leaders wondering how this might affect cities. If Judge Garland becomes Justice Garland, how might he rule in cases affecting state and local government?

State and local government do not consistently benefit more from liberal or conservative Justices. Whether they do or not depends on the issue and the specific case (which sometimes may not matter at all). Two other factors could give us a better sense of how he may view the interests of state and local government in cases. They are: his state and local government experience, and his previous decisions.

The first factor is, unfortunately, irrelevant in the case of Judge Garland. Before his appointment to the D.C. Circuit Court of Appeals, he worked for the federal government and a big law firm.

(photo: Wikimedia Commons)

(photo: Wikimedia Commons)

In 2010, Judge Garland was on President Barack Obama’s “short list” to replace Justice Stevens. Tom Goldstein of SCOTUSblog, reviewed Judge Garland’s decisions in depth. His most notorious decisions, then and probably now, are a vote against Guantanamo detainees, subsequently overturned by the Supreme Court, and a vote to rehear a D.C. Circuit’s decision to invalidate the D.C. handgun ban.

More relevant to state and local government, Goldstein concluded in 2010 that Judge Garland has tended to take a “broader view” of First Amendment rights, which will often not favor state and local government. Goldstein also noted that Garland has “strong views favoring deference to agency decision makers,” which in many cases will not benefit state and local government.

As challenges to the Clean Power Plan and the Waters of the United States regulations work their way to the Supreme Court, Judge Garland’s record on environmental issues is particularly relevant. Goldstein concluded that, while sometimes Judge Garland has favored the EPA, in this area he has been “most willing to disagree with agency action.”

As Judge Garland’s lengthy judicial record is sifted through more carefully over the next weeks or months, we will have a better sense of where he may stand generally and in regards to state and local government.

At this point, while it may be difficult to predict how Judge Garland will vote, the bigger question is: Will he be confirmed?

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.

Tenth Circuit Upholds Colorado’s Effort to Collect Use Tax on Remote Sales

The Tenth Circuit Court upheld a Colorado law that requires internet sellers to inform Colorado buyers of their purchases and send the same information to the Colorado Department of Revenue.

The Tenth Circuit began its opinion by noting the difficulty states and local governments face collecting use tax in an e-commerce economy. (Getty Images)

The Tenth Circuit began its opinion by noting the difficulty state and local governments face collecting use tax in an e-commerce economy. (Getty Images)

A dream shared by states and local governments nationwide may be realized shortly in Colorado. Use tax collection on internet purchases in the state may increase.

The Tenth Circuit held that a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases – and send the same information to the Colorado Department of Revenue – is constitutional.

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect use tax. To improve tax collection, in 2010 the Colorado legislature 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 the law was unconstitutional under Quill.

In Direct Marketing Association v. Brohl, the Tenth Circuit disagreed concluding that Quill “applies narrowly to sales and use tax collection.” The Tenth Circuit noted that neither the Supreme Court nor the Tenth Circuit has extended Quill “beyond the realm of sales and use tax collection.” The Tenth Circuit further concluded the Colorado law doesn’t discriminate against interstate commerce because DMA was unable to point to any evidence that the notice and reporting requirements imposed on out-of-state retailers are more burdensome than the sales tax collection and administration requirements imposed on in-state retailers.

In March 2015 the Supreme Court held unanimously that the Tax Injunction Act does did not bar the Tenth Circuit from deciding this case. The State and Local Legal Center (SLLC)  filed an amicus brief discusses the devastating impact Quill has had on state and local governments in light of the rise of internet purchases, Congress’s failure to pass the Marketplace Fairness Act, and states’ need to improve use tax collection through statutes like Colorado’s. Justice Kennedy wrote a concurring opinion which appeared to rely on the SLLC’s brief, stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”

The SLLC filed an amicus brief in Tenth Circuit making the same policy arguments that it made in the Supreme Court. The brief also argued that Quill does not apply to the Colorado law and that the notice and reporting requirements aren’t discriminatory.

The Tenth Circuit began its opinion by noting the difficulty state and local governments face collecting use tax in an e-commerce economy. The opinion cited the SLLC brief, which provided an estimate of the very low rate of use tax compliance, and quoted Justice Kennedy’s recent criticism of Quill.

At least three other states have similar notice and reporting requirements (Oklahoma, South Dakota, and Vermont).

All of the “Big Seven” members of the SLLC joined the amicus brief as did SLLC associate members the International Municipal Lawyers Association and the Government Finances Officers Association. Ron ParsonsJohnson, Abdallah, Bolleg & Parsons in Sioux Falls, South Dakota, and Lisa Soronen, SLLC, wrote the SLLC brief.

The SLLC generally only files amicus briefs in U.S. Supreme Court merits cases affecting state and local government. The SLLC made an exception and filed an amicus brief in the Tenth Circuit because of the importance of this issue to SLLC members.

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 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, on behalf of local leaders across the country, reaffirmed its support for the plan.

The National League of Cities and the U.S. Conference of Mayors also previously 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.

Curious as to how this might affect your city? There will be two upcoming conference calls to learn more about the impact of the Clean Power Plan stay on 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.