Recent U.S. Supreme Court Decisions and Other Current Issues for Local Governments

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1 Recent U.S. Supreme Court Decisions and Other Current Issues for Local Governments Presented and prepared by the IMLA Legal Advocacy Team Charles W. Thompson, Jr. Amanda Kellar October 2015 International Municipal Lawyers Association (IMLA) 7910 Woodmont Ave. Suite 1440 Bethesda, MD

2 U.S. SUPREME COURT 1. BEFORE THE COURT Practice before the Supreme Court has become specialized over the past twenty or so years. A party seeking review by the Court, opposing its review or participating in a case where the Court has granted certiorari should recognize that the Court is not a court of error. The Court receives almost 10,000 petitions each year. Of these, it grants certiorari in about 80 cases and schedules oral argument for about 70 cases. Because prisoners (and other in forma pauperis petitioners) file the largest number of petitions with the Court statistics suggest that only about 1% of the petitions filed are granted. If only paid cases filed with the Court are considered, the number increases to about 4%. In other words, the chances of getting the Court to take your case are slim. While rudimentary, counsel should review Rule 10 of the Supreme Court Rules as part of any consideration as to whether to seek certiorari. The Rule provides a guide to how counsel might structure a petition and ought to provide insight into whether to file a petition at all. The Rule provides: Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court s discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court s supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. 2

3 Framing the issue in a petition for certiorari ought to be the second step after reviewing the Rule. As noted, the Court must weed through several thousand requests to find the very few cases it wants to decide. Four Justices must vote to grant certiorari and each of their votes is precious and well considered. A Justice may believe that an issue ought to be decided, but will withhold the vote to grant certiorari for many reasons. These can include fear that the issue will be decided adversely to the Justice s views for a variety of reasons including that the arguments advancing the issue in the petition seem leaden and unlikely to attract a majority; or a belief that another case frames the issue better. The petitions in Lane v. Franks and Integrity Staffing Solutions v. Busk offer two different approaches to framing an issue. The Court granted both petitions. In Lane the issue was framed succinctly and without prelude; counsel couched the issue in viscerally and intellectually compelling language. In Integrity Staffing Solutions counsel offered a prelude to the similarly succinct issue offering a bit of important background to what might have otherwise appeared a very dull question. Each of these attorneys is a respected Supreme Court counsel who is a sought after advocate for a reason. While the Court denies certiorari to many similarly succinct and well phrased issues, many it denies are garbled and include far too many issues for the Court s consideration. A case generally has one compelling reason that can attract the Court s attention and as with Lane a corollary issue attendant to it. Petitions that offer the Court an opportunity to decide more than two issues are rarely granted and framing the petition to include myriad issues may enjoy client approval, but will rarely find success. Because the Court receives so many petitions, finding amicus support can often help get the Court s attention and show that the case has a broader impact. Hearing the Petitioner make that argument can certainly be persuasive, but proof that the issue affects more than just the litigants says much more. Finding an amicus can often be difficult as where there is a circuit split, there will be many potential amici who don t want to see the law changed in their circuit, or their state court has adopted a rule with which they are happy. The more diverse the group the amicus represents the more likely the Court will recognize the need for deciding the issue. An amicus can sometimes change the proposed issue as the amicus may have a different view of what the Court should decide. Indeed, an amicus may articulate the issue differently and offer better reasons as to why the Court ought to decide the issue. The Court s rules do not limit the amici to arguing the record and in large measure the Court s practice encourages the amici to bring to the Court s attention relevant facts, treatises and studies both at the petition and merits stage. In Comptroller v. Wynne, IMLA filed an amicus brief at the petition stage in support of the State of Maryland and several Maryland counties and the Court sought the views of the Solicitor General. The Solicitor General filed his views in early April 2014, suggesting that the Court grant certiorari and reverse the Maryland court; he cited to facts offered by IMLA in its amicus brief that were not part of the record. The Court granted certiorari and decided the case as a part of its 2014 Term. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), Justice Alito in deciding an important government 3

4 speech case referred several times to the IMLA amicus brief and to a survey IMLA conducted of its members to support his decision. As a Respondent, when the Petitioner files with the Supreme Court, counsel first must consider whether to file a response or waive doing so. Advice on this topic varies, with some counseling to file a response and others counseling against filing. Filing a response draws attention to the issue and for that reason alone, many counsel against it. On the other hand, the Court will ask for a response in cases it considers might merit certiorari. Just one Justice can ask for a response, so the request may not indicate that certiorari will be granted, but certiorari will not be granted where there is not a response and the request draws attention to the issue. So, in cases where counsel believes a response will be requested, it is best to be proactive and file and not waive the response. The response needs to recognize that the question for the Court at this stage is whether to grant certiorari, not whether the lower court was wrong in its decision. Going back to Rule 10, counsel for the Respondent should describe why the case does not fit. In Plumhoff v Rickard, the Court asked the Respondent to file a response. That response provided little help to the Court and may be a model of how not to write a Respondent s brief at the petition stage. Unlike a Petitioner seeking certiorari and trying to draw attention to the issue, the Respondent tries to cover itself in anonymity. So, in addition to the reasons for filing or not filing a response already discussed, the Respondent may want to look at the Court s schedule. Timing a response can reap some rewards. For example, timing a response or waiver to get into the long conference could make a difference in the quest for anonymity. During its term the Court holds private conferences to discuss whether to grant certiorari. The long conference is the first conference of the term and is usually held the Friday before the Court s first oral arguments in the term. At the long conference the court reviews thousands of petitions that have stacked up during the summer recess. At other conferences during the year the numbers are about a hundred or so, which makes anonymity at the long conference statistically more likely. When the Court conferences, the Chief Justice circulates a list of cases for discussion and each Justice may add to that list. If a case scheduled for that conference is not on the discussion list, certiorari will be denied. If the Court grants certiorari, the first thing counsel should do is contact the Georgetown Supreme Court Institute and ask for a moot court. The Institute provides this service free of charge and to the first party to contact it; although, its new policy is to toss a coin in those cases where each party contacts it within 24 hours, so contacting them quickly cannot be over emphasized. (If you would like to schedule a moot in your case, call or Dori Bernstein, SCI Director, at (202) or dkb37@law.georgetown.edu.) Merits briefs can be due in very short order. This means that counsel should be prepared by having lined up amici and possibly engaging Supreme Court counsel. Getting Supreme Court counsel for the merits and getting amici at this stage will be much easier than at the petition stage. Attorneys practicing before the Court often want to increase the number of arguments on their resume and may be willing to handle a case pro bono. Amici will often line up unbidden to file either for or against an issue. Coordinating the amicus effort for the client should be an important part of the 4

5 advocacy. Rather than each amicus writing on the same subpart of an argument, each can take an argument, support it and expand it, avoiding repetition. Counsel for a party cannot write an amicus brief in the case, so while discussion and coordination are important, those discussions and that coordination cannot direct the amicus brief in detail. Until recently, the Ninth Circuit generated the most merits cases of any circuit and its reversal rate has been high. In the October 2013 term, the Ninth and Sixth Circuits tied for the most cases, but in the October term of 2011, the Ninth Circuit generated almost one third of the cases decided. It was reversed in roughly 71% of those cases. In the 2014 Term, the Ninth Circuit still generated the most merits cases (21%), and was reversed 63% of the time. Scotusblog.com (from which these statistics are derived) provides a great resource on the Court and provides statistical reports for much of its activity that can be vital to understanding the Court. A new addition to the Scotusblog.com statistics shows who has argued cases before the Court and their experience. Many of the premier practitioners before the Court have experience in the Office of Solicitor General, some having been Solicitor General at one time. 2. OCTOBER TERM 2015 Franchise Tax Board of California v. Hyatt Comity / Discretionary-Function Immunity The issues before the Court are: (1) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (2) Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled. This case involves a former California resident who moved to Nevada and who earned hundreds of millions of dollars in licensing fees during the time that he lived in California. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit. After a long and convoluted procedural history, the Nevada Supreme Court held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada s public policy because the state s interest in providing relief to its citizens outweighs the comity principles. IMLA filed an amicus brief at the certiorari stage and also joined a brief filed by the SLLC at the merits stage that focused on the comity issue. Friedrichs v. California Teachers Association Public Sector Bargaining 5

6 The issues before the Court are: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector agency shop arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. Evenwel v. Abbott Voting Districts The issue before the Court is whether the three-judge district court correctly held that the oneperson, one-vote principle under the Equal Protection Clause allows states to use total population, and does not require states to use voter population, when apportioning state legislative districts. Heffernan v. Paterson First Amendment / Public Employment The issue is whether the First Amendment bars the government from demoting a public employee based on a supervisor s perception that the employee supports a political candidate. IMLA plans on joining an amicus brief that will be filed by the SLLC in this case and will attempt to reframe the issue in a more positive light for local governments. In this case, police officer Jeffery Heffernan s former police chief and friend, Lawrence Spagnola, was running for mayor against the current mayor of the City of Paterson. Because of the politically sensitive nature of the situation, the current police chief (who directly reports to the mayor) instituted a policy for a limited number of high ranking employees, including Heffernan, that they were prohibited from getting involved in either campaign. While Heffernan wanted Spagnola to win he didn t work on his campaign. Heffernan s bedridden mother asked Heffernan to pick up a campaign sign for her and Heffernan in turn met with Spagnola s campaign manager to pick up the sign. Another police officer saw Heffernan talking to Spagnola s campaign manager and told one of Heffernan s supervisors. Heffernan was demoted for his overt involvement in a political election, in violation of the aforementioned policy, though he intended no such thing by merely picking up the sign for his mother. The Third Circuit ruled against Heffernan concluding that there is no perceived-support First Amendment retaliation theory. A traditional and crucial element of a First Amendment retaliation claim is that a plaintiff actually exercises a First Amendment right (convey a political message or associate with a political party). Heffernan exercised no such right. It was undisputed that Heffernan did not intend to convey a political message or intend to affiliate himself with the political campaign, which would be protected by the First Amendment, when he picked up the sign for his mother. (He repeatedly disavowed doing so). His demotion was based on his employer s perception that he intended to convey a political message / associate with the campaign. The Third Circuit noted: it is not a violation of the Constitution 6

7 for a government employer to [discipline] an employee based upon substantively incorrect information, Waters v. Churchill, 511 U.S. 661, 679 (1994), even where the government employer erroneously believes that the employee had engaged in protected activity under the First Amendment. Luis v. United States Asset Forfeiture The issue before the Court is whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments. In this case, Luis was indicted on charges related to $45 million in Medicare fraud. Because her personal assets amounted to much less than $45 million, the federal government sought to freeze the use of her assets not traceable to the fraud pursuant to statutory authority. See 21 U.S.C The petitioner claimed that the forfeiture of such legitimately obtained assets violated her Sixth Amendment right to counsel. The Eleventh Circuit held that the seizing the assets did not violate her constitutional rights. The district court, which was upheld by the Eleventh Circuit, illustrated the point with this example: [S]uppose... a bank robber [steals $100,000 and has] spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no. The bank has the right to have those substitute, untainted assets kept available for return as well IMLA joined an amicus brief filed by the SLLC in this case. Fisher v. University of Texas at Austin Affirmative Action The issue before the Court in this case is whether the Fifth Circuit s re-endorsement of the University of Texas at Austin s use of racial preferences in undergraduate admissions decisions can be sustained under this Court s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin. Tyson Foods v. Bouaphakeo Class Action Wage & Hour Claims / Use of Statistics The issues before the Court in this case are: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair 7

8 Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages. Green v. Brennan Employment Law / Constructive Discharge Timing The issue before the Court in this case is whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, as five circuits have held, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation, as three other circuits have held. Dollar General Corporation v. Mississippi Band of Choctaw Indians Tribal Court Jurisdiction The issue before the Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members. Utah v. Strieff Evidence Suppression The issue before the Court is whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful. Florida v. Georgia - Water Rights The issue before the Court is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region. Mississippi v. Tennessee - Water Rights / Groundwater The issues before the Court are: (1) Whether the Court will grant Mississippi leave to file an original action to seek relief from respondents use of a pumping operation to take approximately 252 billion gallons of high-quality groundwater; (2) whether Mississippi has sole sovereign authority over and control of groundwater naturally stored within its borders, including in sandstone within Mississippi s borders; and (3) whether Mississippi is entitled to damages, injunctive, and other equitable relief for the Mississippi intrastate groundwater intentionally and forcibly taken by respondents. 3. OCTOBER TERM 2014 Integrity Staffing Solutions v. Busk Fair Labor Standards Act The question presented in this case was whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. 8

9 IMLA filed as an amicus at the petition stage asking the court to review this case due to its potential impact on local governments. Certiorari was granted on March 3, 2014 and IMLA joined an amicus brief submitted by the State and Local Legal Center at the merits stage. In a unanimous opinion, delivered by Justice Thomas, the Court held that time waiting for security screenings was not compensable under the FLSA. The petitioners in this case alleged that the approximately 25 minutes they spent each day waiting for security screenings after they finished their shift was for the benefit of the employer as it was done to prevent theft and it therefore should be compensable under the FLSA. The Court began its opinion by discussing the history behind Congress enactment of the Portalto-Portal Act. Specifically, the Court noted that the FLSA did not define work or workweek and that Congress enacted the Portal-to-Portal Act in response to the Court s broad interpretation of those words and the flood of litigation that followed the Court s broad interpretation. The Portal-to-Portal Act exempts employers from liability under the FLSA based on two categories of work-related activities, and at issue here is the exemption for activities which are preliminary to or postliminary to principal activities. Justice Thomas explained that the Court has consistently interpreted the term principal activity or activities to embrace all activities which are integral and indispensable part of the principal activities and that [a]n activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one which the employee cannot dispense if he is to perform his principal activities. After providing examples of activities that are compensable due to the fact that they are indispensable to the performance of the employees productive work as well as activities from prior precedent that were not compensable, the Court concluded that the screenings at issue here were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. The Court noted that it was an error for the lower court to focus on whether the employer required the activity as such a test would sweep into principal activities the very activities the Portal-to-Portal Act was designed to address. City and County of San Francisco v. Sheehan Fourth Amendment / Americans with Disabilities Act Questions Presented: (1) Does the ADA apply to arrests so as to require the police to provide a mentally disabled person a comfort zone as an accommodation as opposed to immediately placing her under arrest; and (2) Was it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence. 9

10 In this case, two officers were called by a social worker to take Sheehan into custody for an involuntary mental evaluation after Sheehan had threatened to kill the social worker with a knife. When the officers arrived, they opened the door to Sheehan s residence and she threatened to kill them as well, brandishing the knife. They left the residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when she kept coming at them with the knife, they shot her several times. She survived and sued under 42 U.S.C and the ADA. The Ninth Circuit held that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers ultimate use of deadly force under the circumstances. However, the Ninth Circuit concluded that the officer s second entry into Sheehan s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan s claim under the ADA, the Ninth Circuit held that the reasonable accommodation requirement of Title II of the ADA applies to officers conduct in the course of an arrest including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her comfort zone until they were able to calm her down), was one for the jury. IMLA filed as an amicus at the petition stage asking the court to review this case due to its potential impact on local governments. Certiorari was granted and IMLA filed an amicus brief at the merits stage as well. IMLA s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded broad discretion in these circumstances. The Court dismissed the first issue regarding the ADA as improvidently granted based on the fact that the Court had believed the city would argue the ADA did not apply to arrests of armed and dangerous individuals, however, that issue was not briefed. Regarding the Fourth Amendment issue, the Court noted that the real question was whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan s door rather than attempting to accommodate her disability. Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question i.e., whether the officers violated the Fourth Amendment by entering the suspect s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified 10

11 immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that it has repeatedly told courts and the Ninth Circuit in particular not to define clearly established at a high level of generality Qualified immunity is no immunity at all if clearly established law can simply be defined as the right to be free from unreasonable searches and seizures. The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan s home was justified both under the continuous search rationale and the exigent circumstances rationale. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. Title VII / religious accommodation The issue before the Court was whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a religious observance and practice only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee. In other words, the EEOC argued an employer should be liable for failure to accommodate claims even if the employer did not have actual knowledge of the employee or applicant s need for a religious accommodation if the employer correctly assumed or guessed that the applicant or employee needed a religious accommodation. IMLA joined a brief filed by the SLLC that argued that under the EEOC s proposed rule, employers would be forced to inquire into applicant s religions based on stereotypes and assumptions, which is precisely what Title VII seeks to prevent. Instead, the brief advocated for adhering to long-standing EEOC guidance that provides that employers should refrain from making hiring and other employment decisions based on stereotypes and assumptions. In an 8-1 ruling, the Supreme Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had actual knowledge of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a motivating factor in the employer s decision. Title VII prohibits employers from taking an adverse employment action because of religion and while because of usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motiving factor in an employment decision. Simply put, the Court would not add an actual knowledge requirement to Title VII. According to the Court, [w]hile a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects the practice in question is a religious practice... Here, the Court concluded that Abercrombie at least suspected the applicant wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without the employer at least suspecting a practice is a religious one. Justice Alito, in a concurring opinion, stated that the Court should have decided this question--in the negative. Kingsley v. Hendrickson - Fourteenth Amendment / excessive force 11

12 The question before the Court was whether the requirements of a 42 U.S.C excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable. In other words, is there a subjective component to excessive force claims under the Fourteenth Amendment or should these claims be analyzed like Fourth Amendment claims brought by arrestees? A different constitutional standard applies in excessive force cases depending on whether a person is an arrestee, a pre-trial detainee, or convicted. Specifically, the Fourth Amendment applies to unreasonable force claims against arrestees, the Fourteenth Amendment s Due Process Clause applies to force used against pretrial detainees, and the Eighth Amendment applies to force used against those convicted. The objectively reasonable test applies under the Fourth Amendment to arrestees, which is the most plaintiff friendly test. Under the Eighth Amendment, a showing of malice is required in force claims, which is the most defendant friendly test. The Supreme Court had never articulated the specifics of the standard that applies to pretrial detainees. IMLA joined a brief filed by the SLLC arguing, among other things, that the practical realities of jails weigh in favor of a single standard for pretrial detainees and convicted prisoners, and that accordingly, the Eighth Amendment standard should be utilized for pretrial detainees as it provides adequate constitutional protections for inmates, but provides prison officials with the necessary level of deference to perform their jobs. In a 5-4 decision, the Court held that to prove an excessive force claim under 42 U.S.C. 1983, a pretrial detainee must show only that the officers use of that force was objectively unreasonable; he does not need to show that the officers were subjectively aware that their use of force was unreasonable. In so holding, the Court relied on its Fourteenth Amendment precedent in jail litigation in other contexts. It also noted that the use of an objective standard for pre-trial detainees being held in jail was consistent with the standard that would be utilized in excessive force cases against other pretrial detainees who were free on bail. In rejecting the Respondent s arguments that the Eighth Amendment s standard should apply, the Court noted that pretrial detainees, unlike convicted prisoners, cannot be punished at all, much less maliciously and sadistically. And while the Court stated that convicted prisoners could be punished, it is worth noting that the Court stated the following in dictum: We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today. Holt v. Hobbs - RLUIPA 12

13 The inmate in this case asserted that one of his fundamental Muslim beliefs is that he must grow a beard. The Arkansas Department of Correction s (ADC) grooming policy prohibits beards. The inmate sought a half-inch beard as a compromise position, which ADC rejected. The issue in this case was whether the ADC s grooming policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) because it prohibits the inmate form growing a half-inch beard in accordance with his religious beliefs. The Court unanimously held that the ADC s policy violates RLUIPA. Hein v. North Carolina - Fourth Amendment / Mistake of Law The Question Presented in this case was whether a police officer s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. In this case, a police officer made a traffic stop because he observed that the car had a brake light that did not work. During the stop, the driver consented to a search of the car, which yielded cocaine in a duffle bag, resulting in a criminal conviction. On appeal, the North Carolina appellate courts ruled that the outdated state vehicle code required only one working brake light and that therefore, there had been no violation of law that would permit the stop. The officer made no error about the facts; but he had been mistaken about the meaning of the law relating to brake lights. However, the North Carolina Supreme Court ruled, the officer s mistake about this law was reasonable, and for that reason the Fourth Amendment right to be secure from unreasonable seizures was not violated. The Supreme Court agreed in an 8-1 opinion authored by Chief Justice Roberts, noting that the touchstone of the Fourth Amendment is reasonableness. The Court explained that [r]easonable suspicion arises from the combination of an officer s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. The Court did note its holding only extended to reasonable mistakes of law and that an officer can gain no Fourth Amendment advantage through a sloppy study o the laws he is duty bound to enforce. North Carolina Board of Dental Examiners v. Federal Trade Commission - Anti-trust, State Action Exemption Question Presented: Whether, for the purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a private actor simply because, pursuant to state law, a majority of the board s members are also market participants who are elected to their official positions by other market participants. In a 6-3 opinion delivered by Justice Kennedy, the Court held that because a controlling number of the Board s decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State, and here that requirement was not met. T-Mobile South, LLC v. City of Roswell - FCC, Wireless Tower Siting 13

14 In order to promote the prompt deployment of telecommunications facilities and to enable expedited judicial review, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, provides that any decision by a state or local government denying a request to place, construct, or modify a personal wireless service facility "shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. 332 (c)(7)(b)(iii). The question presented was whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory "in writing" requirement. IMLA joined an amicus brief submitted by the State and Local Legal Center. In a 6-3 opinion, the Court held that when a locality denies a request, it must provide or make available [its] reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice. Comptroller of Maryland v. Wynne Dormant Commerce Clause Question Presented: Does the United States Constitution prohibit a state from taxing all the income of its residents-wherever earned-by mandating a credit for taxes paid on income earned in other states? At issue in the case was Maryland s tax scheme, which included a personal income tax on state residents for state income tax as well as a county income tax. Maryland provided residents who paid income tax to another jurisdiction for income earned in that other jurisdiction a credit against state taxes, but Maryland did not provide a credit for the county tax. Nonresidents who earned income from sources within Maryland had to pay the state income tax as well as a special nonresident tax in lieu of the county tax. The result of Maryland s tax structure was that some Maryland residents who earned income outside the state were subjected to so-called double taxation because a credit was only offered on the state tax not on the county tax. IMLA filed as an amicus brief at the petition stage asking the court to review this case due to its potential impact on local governments and their ability to tax their residents. Certiorari was granted and IMLA joined an amicus brief submitted by the State and Local Legal Center. In a 5-4 opinion, writing for a sharply divided Court, Justice Alito concluded that Maryland s personal income tax scheme violated the dormant Commerce Clause. The majority concluded that Maryland s tax scheme created a risk of double taxation, was inherently discriminatory, and that it failed the internal consistency test. The majority noted that the state s tax scheme operates as a tariff, which the Court concluded is fatal because tariffs are the paradigmatic example of law discriminating against interstate commerce. (internal quotations omitted) 14

15 The Court explained that Maryland s tax scheme fails the internal consistency test because if every State adopted Maryland s tax structure, interstate commerce would be taxed at a higher rate than intrastate commerce. The majority also concluded that the Court s existing dormant Commerce Clause cases all but dictate the result in the case as they have invalidated state tax schemes that might lead to double taxation of out-of-state income and that discriminated in favor of intrastate over interstate economic activity. The Court brushed aside arguments made by the Solicitor General (which were also advanced by IMLA and other state and local government groups) that residents of a county reap the benefits of local government services, like schools, roads, and police and fire services, and a state should therefore have the ability to tax the income of residents for those services, regardless of where that income was earned. This case resulted in three dissents and in the principal dissent, Justice Ginsburg argued that it is well-established that states have the authority to tax all of their resident s income, wherever earned and that it is a policy decision that should be left to the states and Congress to decide whether they want to offer tax credits for income that is taxed by other states. She concluded her dissent by quipping that the Court is ill equipped to resolve competing tax policy issues. Reed v. Town of Gilbert, AZ First Amendment; Signs Question Presented: Does the Town s mere assertion of a lack of discriminatory motive render its facially content based sign code content-neutral and justify the code s differential treatment of Petitioners religious signs? In this case, after receiving an advisory notice that its signs announcing the time and location of church services were displayed for a longer time period than the Town of Gilbert s Sign Code allowed, the Good News church sued Gilbert claiming the Sign Code violates the Free Speech Clause of the First Amendment. Gilbert s Sign Code includes temporary directional signs related to qualifying events, political signs, and ideological signs. Good News church s signs were temporary directional signs; such signs receive the less favorable treatment under the Sign Code (in terms of size, location, duration, etc.) than political signs and ideological signs. IMLA joined an amicus brief submitted by the State and Local Legal Center arguing that the Town s Sign Code was content neutral and further, that if the mere categorization of signs by their function renders them content-based, then few sign regulations across the country would meet the strict scrutiny test. In a significant ruling for local governments, the Court unanimously held that the Sign Code's provisions were content-based regulations of speech that do not survive strict scrutiny. The Court noted that the Sign Code was content based because it drew distinctions in the types of signs "on its face" and there was therefore no need to consider what the government's justifications or purposes for enacting the provisions were to determine what level of scrutiny to apply. After determining that the Sign Code was content-based, the Court had no problem 15

16 concluding that its differential treatment of the different sign provisions could not survive strict scrutiny because, according to the Court, the distinctions are highly underinclusive. Notably, Justice Thomas, writing for the majority, concludes by stating: "An ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers -e.g., warnings signs marking hazards on private property or signs directing traffic - might also survive strict scrutiny." (emphasis added). There were three concurrences filed with the majority, and three Justices concurred in the judgment only, including Justice Kagan. Justice Kagan and the majority differed in their conclusions regarding the breadth of the decision. According to the majority: This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem "entirely reasonable" will sometimes be "struck down because of their content-based nature." Justice Kagan and at least two other Justices who joined her concurrence seemed to view the ruling as far more sweeping than the majority implied. She states: And although the majority holds out hope that some sign laws with subject-matter exemptions "might survive" that stringent review, ante, at 17, the likelihood is that most will be struck down... The consequence-unless courts water down strict scrutiny to something unrecognizableis that our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter... As the years go by, courts will discover that thousands of towns have such ordinances, many of them "entirely reasonable." Ante, at 14. And as the challenges to them mount, courts will have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of Sign Review.) And courts will strike down those democratically enacted local laws even though no one-certainly not the majority-has ever explained why the vindication of First Amendment values requires that result. Because I see no reason why such an easy case calls for us to cast a constitutional pall on reasonable regulations quite unlike the law before us, I concur only in the judgment. In his separate concurrence, which was joined by two other Justices, Justice Alito offers a noncomprehensive list of sign ordinances municipalities may now enact, at least in his view, in light of the majority's opinion. In his litany of potentially acceptable regulations, Justice Alito included the following: "Rules distinguishing between on-premises and off-premises signs." While local governments may be hopeful that such a distinction would be acceptable, under the 16

17 majority s ruling, it is difficult to know how one can distinguish between on-premises and offpremises signs without using the sign's content. Perez v. Mortgage Brokers Association Administrative law Question Presented: Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. This case involves a 2006 Department of Labor (DOL) opinion letter that concluded that mortgage loan officers do not have to be paid overtime if they work more than 40 hours a week. In 2010 the DOL issued an Administrator s Interpretation saying the opposite and withdrawing the 2006 opinion letter. The Mortgage Bankers Association, who represents over 2,200 real estate finances companies, sued DOL claiming that if DOL wanted to make this change it had to conduct notice and comment rulemaking. IMLA joined an amicus brief submitted by the State and Local Legal Center. In a unanimous opinion, the Court held that a rule requiring agencies to use the notice-andcomment process before it can significantly revise an interpretive rule is contrary to the clear text of the Administrative Procedure Act. City of Los Angeles v. Patel Fourth Amendment / Facial Challenge to Municipal Ordinance Questions Presented: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry. This case involves Los Angeles Municipal Code 41.49, which requires hotel and motel operators to keep specific information about their guests like their name, address, room number, and information about their vehicle parked at the hotel. Section also states that hotel guest records shall be made available to any officer of the Los Angeles Police Department for inspection. In a facial challenge to the ordinance, motel operators objected to authorizing warrantless inspection of guest records. IMLA joined an amicus brief submitted by the State and Local Legal Center arguing that facial challenges under the Fourth Amendment should not be allowed as Fourth Amendment inquiries turn on the reasonableness of the situation and a facial challenge can only succeed if the ordinance is unconstitutional in every setting. 17

18 In a 5-4 opinion, the Court rejected this argument, holding that facial challenges under the Fourth Amendment are not categorically barred or even especially disfavored. Regarding the ordinance in question, the Court held that the ordinance requiring hotel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to "any officer of the Los Angeles Police Department for inspection" on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. Fair Housing Act Question Presented: Whether disparate-impact claims are cognizable under the Fair Housing Act. This is the third time the Court has accepted a case involving the issue of whether disparateimpact claims can be brought under the Fair Housing Act (FHA). (The prior two cases settled). In a 5-4 opinion delivered by Justice Kennedy, the Court held that disparate impact claims do exist under the FHA. After reviewing the relevant history leading up to the enactment of the FHA, the Court heavily relied on its decisions in Griggs v. Duke Power Co., 401 U.S. 424 and Smith v. City of Jackson, 544 U.S. 228 finding that disparate impact claims exist under both Title VII and the ADEA respectively. The Court reviewed the language of each statute and concluded that the phrase "otherwise make unavailable" in the FHA pointed to consequences rather than discriminatory intent, supporting a finding that Congress intended for disparate impact liability to exist under the FHA The Court noted that such a conclusion was consistent with the purpose of the FHA (as well as Title VII and the ADEA) because the statute was enacted with the purpose to "eradicate discriminatory practices within a sector of the Nation's economy." The Court also relied on the fact that all nine of the Court of Appeals to consider the issue had held that disparate-impact claims exist under the FHA when Congress amended the Act in 1988 and Congress chose to retain the relevant statutory text at that time, signifying its intent for these claims to survive. Notably, the Court cited to an amicus brief drafted by the city of San Francisco, observing that many of the Nation's largest cities supported the theory of disparate impact liability even though such cities might very well be defendants in these cases. After finding that disparate impact claims exist, however, the Court provided limits to these claims. First, the Court noted that a disparate impact claim cannot rely on statistics alone. Instead, a plaintiff must also point to a defendant's policy that caused the statistical disparity. The Court indicated that such policies do not run afoul of the FHA unless they are "artificial, arbitrary, and unnecessary barriers." Second, the Court provided that defendants in these cases should be afforded the opportunity to "state and explain the valid interest served by their policies" and that they should be allowed to maintain those policies if they can prove they are "necessary to achieve a valid interest," which the Court noted was analogous to the "business necessity" defense under Title VII. 18