Our full roundup of the latest Supreme Court developments covers a wide variety of cases relevant to cities.
By Lisa Soronen.
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.
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 theFourteenth 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.
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.
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.
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 inUnited 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 decidedHeller. 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 therefusal 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, andBeylund 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.