2016 Supreme Court Preview for Local Governments

A number of cases currently on the Court’s docket will directly impact local governments – and in two of those cases, a city is a named party.

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The Supreme Court’s docket is currently about half full – which is typical for this time of year. (Getty Images)

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

The cases on the Supreme Court’s 2016 docket described below will directly impact local governments. In two of those cases, a city is a named party.

The issue in both Wells Fargo v. City of Miami* and Bank of America v. City of Miami* is whether Miami has “statutory standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to the city by discriminatory lending practices.

The Eleventh Circuit concluded Miami had “statutory standing” based on an older case, Trafficante v. Metropolitan Life Insurance Company (1972), where the Supreme Court stated that statutory standing under the Fair Housing Act is “as broad as is permitted by Article III of the Constitution.” The parties do not dispute that the city of Miami has Article III standing in this case.

In Ivy v. Morath,* the Supreme Court will decide when state and local governments are responsible for ensuring that a private actor complies with the Americans with Disabilities Act (ADA).

In Texas, state law requires that most people under the age of 25 attend a state-licensed private driver education school to obtain a driver’s license. Deaf students sued the Texas Education Agency (TEA), arguing it was required to bring the driver education schools — none of which would accommodate deaf students — into compliance with the ADA.

The ADA states that no qualified individual with a disability may be excluded from participation in, or be denied the benefits of, public entity “services, programs, or activities” because of a disability. The Fifth Circuit concluded that the ADA does not apply to the TEA because it does not provide “services, programs, or activities.”

In Murr v. Wisconsin,* the Supreme Court will decide whether merger provisions in state law and local ordinances (where nonconforming, adjacent lots under common ownership are combined for zoning purposes) may result in the unconstitutional taking of property.

The Murrs owned contiguous lots E and F, which together totaled .98 acres. Lot F contained a cabin and lot E was undeveloped.

A St. Croix County merger ordinance prohibits the individual development or sale of adjacent lots under common ownership that are less than one acre total. But the ordinance treats commonly owned adjacent lots of less than an acre as a single, buildable lot.

The Murrs sought and were denied a variance to separately use or sell lots E and F. They claim the ordinance resulted in an unconstitutional uncompensated taking.

The Wisconsin Court of Appeals ruled there was no taking in this case. It looked at the value of lots E and F in combination and determined that the Murrs’ property retained significant value despite being merged. A year-round residence could be located on lot E or F, or could straddle both lots.

In the case of Manuel v. City of Joliet,* Elijah Manuel was arrested and charged with possession of a controlled substance even though a field test indicated his pills weren’t illegal drugs. About six weeks after his arrest, he was released when a state crime laboratory test cleared him.

If Manuel would have brought a timely false arrest claim in his case, it is almost certain he would have won. But such a claim would not have been timely because Manuel didn’t sue within two years of being arrested or charged. So he brought a malicious prosecution claim under the Fourth Amendment.

An element of a malicious prosecution claim is that the plaintiff prevails in the underlying prosecution. Manuel “prevailed” when the charges against him were dismissed, and he brought his lawsuit within two years of the dismissal.

The question the Supreme Court will decide in Manuel v. City of Joliet* is whether malicious prosecution claims can be brought under the Fourth Amendment in the first place. The Supreme Court left this question open in Albright v. Oliver (1994).

Notably absent from the Court’s docket this term so far are a lot of routine issues the Court regularly takes, including Fourth Amendment searches, qualified immunity, and employment. The Court has plenty of time and space on the docket to agree to decide cases raising those issues.

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.

States Sue Over New Overtime Rules

Twenty-one states are suing the Department of Labor over new overtime rules which make it more likely states will have to pay more employees overtime. They are seeking an injunction which will prevent the new rules from going into effect on December 1, 2016.

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To the Department of Labor, salary level — not the type of work actually performed – “is the best single test of exempt status for white collar employees.” (Getty Images)

Per the Fair Labor Standards Act (FLSA), “white collar” employees do not have to be paid overtime if they work more than 40 hours a week. Per Department of Labor regulations, adopted shortly after the FLSA was adopted in 1938, employees must perform specific duties and earn a certain salary to be exempt from overtime as white collar employees.

On May 23, 2016, the Department of Labor (DOL) issued final rules nearly doubling the previous salary level test for white collar employees from $455 per week, or $23,660 per year to $913 per week, or $47,476 per year.

DOL also raised the salary threshold for highly compensated employees (who aren’t eligible for overtime no matter their job duties) from $100,000 per year to $134,004 per year. The rules automatically update the salary level every three years for white collar and highly compensated employees.

As a practical matter, the states object to these rules because they will cost more money and states “cannot reasonably rely upon a corresponding increase in revenue, [so] they will have to reduce or eliminate some essential government services and functions.”

In its complaint, the states make five arguments for why the Texas federal district court should grant their injunction. Its first and most ambitious argument is that the Court overturn Garcia v. San Antonio Metropolitan Transit Authority (1985), where the Court held that the FLSA applies to the states.

The states also argue that DOL has exceed its authority under the FLSA in issuing these rules by ignoring the duties an employee performs and making salary a litmus test.

By automatically increasing the salary basis test, DOL is violating the FLSA’s requirement to “define and delimit from time to time” the white collar exception, the states claim.

As in almost any lawsuit objecting to federal rules, the states argue the rules are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Finally, the states claim that Congress improperly delegated congressional legislative power by conferring “unlimited legislative authority on DOL” in the FLSA.

In addition to the lawsuit, there is also a legislative effort underway to block the rule from going into effect. Rep. Kurt Schrader (D-OR) introduced H.R. 5813, the Overtime Reform and Enhancement Act, several months ago, and it is awaiting action in the House Committee on Education and Workforce. The bill would implement a three-year phase-in of the new salary threshold and also eliminate the automatic increases. NLC supports the legislation and is considering filing an amicus brief in support of the states’ lawsuit.

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 Review for Local Governments – Fall 2016

NLC’s Lisa Soronen provides a complete review of the 2015-2016 cases that affect local governments, and offers a glimpse at three new cases of interest to be decided in the Court’s 2016-2017 term.

photo - Supreme Court in Spring with FountainLast term, the Supreme Court decided six (arguably, seven) “big” cases. Five of those big cases impacted local governments in some way. In some of these cases, being down a Justice made all the difference — and in at least two cases, it made no difference at all. The Court also decided a number of “bread and butter” issues affecting local governments, such as qualified immunity, public employment, and Fourth Amendment searches. (markphariss/Getty Images)

The Big Cases

In Friedrichs v. California Teachers Association, the Supreme Court issued a 4-4 opinion affirming the lower court’s decision to not overrule Abood v. Detroit Board of Education (1977).

In Abood, the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements – where public employees who do not join the union are still required to pay their “fair share” of union dues for collective bargaining, contract administration, and grievance-adjustment.

In two recent cases in 5-4 opinions 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 Court heard oral argument in Friedrichs in January before Justice Scalia died, and the five more conservative Justices seemed poised to overrule Abood. Justice Scalia, who ultimately didn’t participate in this case, likely would have voted to overrule Abood.

In Reynold v. Sims (1964), the Supreme Court established the principle of “one-person, one-vote” requiring state legislative districts to be apportioned equally.

The question in Evenwel v. Abbott was what population is relevant — total population or voter-eligible population.

The maximum total-population deviation between Texas Senate districts was about 8 percent; the maximum voter-eligible population deviation between districts exceeded 40 percent.

The Court’s unanimous opinion concluded Texas may redistrict using total population “based on constitutional history, this Court’s decisions, and longstanding practice.”

Over the last 25 years the Supreme Court refused to decide this issue at least three times (all the previous cases involved local governments).

The Supreme Court split 4-4 in United States v. Texas on whether the President’s deferred action immigration program violates federal law.

As a result, the Fifth Circuit’s nationwide temporary stay of the program remains in effect.

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.

The National League of Cities and the U.S. Conference of Mayors joined an amicus brief in this case supporting the United States.

In Fisher v. University of Texas at Austin, the Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class. Other students are admitted based on a combination of their grades, test scores, and “personal achievement index.” Race is considered as one factor in one of the two components of an applicant’s “personal achievement index.”

The Court rejected Abigail Fisher’s argument that the university’s use of race is unnecessary. This is the first time an education institution has won an affirmative action case since Grutter v. Bollinger (2003).

In McDonnell v. United States, the Court unanimously reversed former Virginia Governor Robert McDonnell’s federal bribery conviction.

While in office McDonnell accepted more than $175,000 in loans, gifts, and other benefits from Jonnie Williams. Williams wanted a Virginia state university to test a dietary supplement, Anatabloc, his company had developed.

The federal government claimed McDonnell committed at least five “official acts” of bribery, including arranging for Williams to meet with Virginia government officials and hosting and attending events at the Governor’s mansion designed to encourage Virginia university researchers to study Anatabloc.

The Court held that setting up meetings, calling other public officials, and hosting events do not alone qualify as “official acts.”

The lower court will decide whether charges against McDonnell should be dismissed based on its new definition of “official acts” or whether McDonnell should receive a new trial.

Bread and Butter Cases

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.”

In Mullenix v. Luna, Israel Leija Jr. led officers on an 18-minute chase at speeds between 85 and 110 miles an hour after officers tried to arrest him. Leija called police twice saying he had a gun and would shoot police officers if they did not abandon their pursuit. While officers set up spike strips under an overpass, Officer Mullenix decided to shoot at Leija’s car to disable it.

Officer Mullenix killed Leija but not disabling his vehicle. Leija’s estate sued Officer Mullenix claiming that he violated the Fourth Amendment by using excessive force.

The Court concluded Officer Mullenix should be granted qualified immunity, stating: “Given Leija’s conduct, we cannot say that only someone ‘plainly incompetent’ or who ‘knowingly violate[s] the law’ would have perceived a sufficient threat and acted as Mullenix did.”

In Heffernan v. City of Paterson, New Jersey,* the Court held 6-2 that a public employer violates the First Amendment when it acts on a mistaken belief that an employee engaged in First Amendment protected political activity.

Police officer Jeffery Heffernan worked in the office of the police chief. The mayor was running for reelection against a friend of Heffernan’s, Lawrence Spagnola. Heffernan was demoted after another member of the police force saw Heffernan picking up a Spagnola yard sign and talking to the Spagnola campaign manager and staff. Heffernan was picking up the sign for his bedridden mother.

The Court agreed that Heffernan has a First Amendment claim even though he engaged in no political activity protected by the First Amendment, because the City’s motive was to retaliate against him for political activity.

A police officer stopped Edward Streiff after he left a suspected drug house. The officer discovered Streiff had an outstanding warrant, searched him (legally), and discovered he was carrying illegal drugs.

The Court held 5-3 in Utah v. Strieff that even though the initial stop was illegal, the drug evidence could be admissible against Streiff in a trial.

The Court first concluded that the discovery of a valid, pre-existing, untainted arrest warrant triggered the attenuation doctrine, which is an exception to the exclusionary rule. The Court then concluded that the discovery of the warrant “was [a] sufficient intervening [attenuating] event to break the causal chain” between the unlawful stop and the discovery of drugs.

In Birchfield v. North Dakota,* the Court held 5-3 that states may criminalize an arrestee’s refusal to take a warrantless breath test. If states criminalize the refusal to take a blood test, police must obtain a warrant.

Per the search-incident-to-arrest exception to the Fourth Amendment, police officers are allowed to search an arrestee’s person, without first obtaining a warrant, to protect officer safety or evidence. To determine if this exception applies, the Court weighed the degree to which the search “intrudes upon an individual’s privacy” with the need to promote “legitimate government interests.”

The Court concluded the privacy intrusion of breath tests was minimal but the privacy intrusion of blood tests was not.

What’s Next?

The Supreme Court has accepted three cases of interest to local governments to be decided in its 2016-2017 term.

The issue in Wells Fargo v. City of Miami and Bank of America v. City of Miami is whether cities have standing to sue banks under the Fair Housing Act over loses cities have experienced caused by discriminatory lending practices. In Manuel v. City of Joliet the Court will decide whether it is possible to bring malicious prosecution claims under the Fourth Amendment possible. Finally, the question in Murr v. Wisconsin is whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property.

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.

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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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.

(Getty Images)

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.