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Washington Post Article Discusses SLLC Brief

Read about the SLLC's novel argument in Wood v. Moss

National Law Journal Article about the SLLC

Center Advocates for State and Local Governments discusses the SLLC’s mission, history, current amicus activity

SLLC February 2014 Newsletter

Find out what's new at the SLLC here

Briefs Recently Filed

Sebelius v. Hobby Lobby Stores & Conestoga Wood Specialties v. Sebelius

In Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius the Supreme Court will decide whether the Religious Freedom Restoration Act (RFRA) applies to for-profit, closely held secular corporations.  If RFRA applies to corporations, the Religious Land Use and Institutionalized Persons Act (RLUIPA) likely will also apply to corporations, greatly expanding the scope of RLUIPA.   RLUIPA bars state and local governments from enforcing land use regulations that impose a substantial burden on “the religious exercise of a person” unless the government can point to a compelling interest.

Three for-profit corporations and their owners claim that the Affordable Care Act’s requirement that employers with 50 or more employees provide coverage of all FDA-approved contraceptive methods, including two types of IUDs, Plan B, and Ella, violates RFRA.  RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion.”  The Third Circuit did not reach the question of whether a for-profit corporation can be a “person” under RFRA because the court concluded that corporations cannot engage in the exercise of religion.  The Tenth Circuit concluded that corporations, regardless of their profit-making status, could be “persons” under RFRA.   

FRFA and RLUIPA are related statutes.  But, FRFA only applies to the federal government, and RLUIPAonly applies in the land use and institutionalized persons’ context.  Both statutes use the term “person” to define who is covered.  The Tenth Circuit relied in part on RLUIPA’s definition of covered entities in construing RFRA’s parallel provision.

The SLLC’s amicus brief focuses exclusively on how “person” should be defined in RLUIPA.  The SLLC’s brief argues the Tenth Circuit was wrong to construe “person” in RFRA as encompassing for-profit and non-profit corporations alike.  Congress’s purpose was for RLUIPA to protect individuals, as well as churches, religious assemblies, and similar organizations, from the unreasonable application of state and local land use laws.  This intention is irreconcilable with a construction that permits for-profit, secular corporations to invoke RLUIPA.  Construing RLUIPA in this fashion would potentially allow a wide variety of groups to challenge local governments’ use of generally applicable zoning ordinances and planning codes, and would magnify the burden on local governments beyond what Congress envisioned.

Aileen McGrath, Christine Van Aken, Sara Eisenberg, and Mollie Lee of the San Francisco City Attorney’s Office, San Francisco, California, wrote the SLLC’s brief.  The National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association signed onto the SLLC's brief.

Wood v. Moss

In Wood v. Moss the Court will decide whether Secret Service agents engaged in unconstitutional viewpoint discrimination when they moved anti-Bush protesters about one block further from the President than pro-Bush demonstrators.  The Court also will decide whether the lower court evaluated the viewpoint discrimination claim at too high a level of generality when determining whether the agents should have been granted qualified immunity.  

Pro- and anti-President Bush demonstrators had equal access to the President as his motorcade arrived in Jacksonville, Oregon.  But when the President made an unexpected stop for dinner at the Jacksonville Inn’s outdoor patio, Secret Service agents, assisted by state and local police officers, moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the President than the pro-Bush demonstrators.  The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated.  The Ninth Circuit denied the agents qualified immunity.  Government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.” 

The Supreme Court will decide whether the lower court evaluated the qualified immunity question in this case too generally.  The Ninth Circuit focused on its conclusion that the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the President than the pro-Bush demonstrators.  The Court also will decide whether the anti-Bush protesters have adequately claimed viewpoint discrimination when there was an obvious security-based rationale for moving them:  they were closer to the President.

The SLLC’s amicus brief encourages the Court to tour downtown Jacksonville using Google Maps Street View.  What the Justices will discover is that there is a parking lot adjacent to the Jacksonville Inn’s outdoor patio which the anti-Bush protesters would have had direct access to had they not been moved a block away.  Pro-Bush demonstrators had no direct access to the Inn where they were gathered because the side of the Inn they were facing was totally blocked by another building.  The SLLC’s brief also argues that when the safety of the President is a stake, police may consider the content of speech.  Finally, the brief argues that the lower court evaluated the qualified immunity question in this case without consideration of the facts, so, too generally.      

Sean Gallagher, Ben Cohen, and Britton St. Onge of Polsinelli in Denver, Colorado, wrote the SLLC’s brief in this case.  The National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, and the National Sheriffs’ Association signed onto the SLLC's brief.  

Plumhoff v. Rickard

In Plumhoff v. Rickard the Supreme Court will decide whether police officers are entitled to qualified immunity for the use of deadly force in a high speed chase. 

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

Police officers shot and killed Donald Rickard and his passenger after Rickard led police on a high-speed chase. Their families sought money damages claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law.  The Court will decide whether the Sixth Circuit properly denied qualified immunity by distinguishing this case, which arose in 2004, with a later Supreme Court decision from 2007. The Court also will decide whether qualified immunity should be denied based on the facts of this case. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer.

The SLLC’s brief argues that the Supreme Court should rule as follows:  Officers retain qualified immunity from Fourth Amendment force claims so long as it is arguable, on the historical facts most favorable to the plaintiff, that the force was reasonable.  In evaluating immunity, a court must adopt the inferences that a reasonable officer could arguably draw from the facts, regardless of whether those inferences are factual or legal.  It is a legal question whether—based on the historical facts, the inferences an officer could arguably draw from them, and clearly established law—only a plainly incompetent officer could conclude that force was reasonable.

Peter Keith, Christine Van Aken, and Vince Chhabria, San Francisco City Attorney’s Office, San Francisco, California, wrote the SLLC’s brief. The National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association signed onto the SLLC's brief.  

McCullen v. Coakley

The Court will decide in McCullen v. Coakley whether a Massachusetts statute prohibiting speech within 35-feet of a reproductive health care facility violates the First Amendment.

Massachusetts law initially allowed protesters to come within six feet of those entering a clinic within an 18-foot buffer zone around the clinic.  Protesters would crowd six feet from a clinic door making entry into the clinic difficult and intimidating.  So in 2007 Massachusetts adopted a 35-foot fixed buffer zone around clinics.  The First Circuit held that this statute is a constitutional time, place, and manner regulation of speech because numerous communication channels remain available to protesters.           

Buffer zones are very common.  The SLLC’s brief points out that how the Court rules in this case could affect state and local government’s ability to regulate speech to protect public safety in many contexts.  For example, lower courts have upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners.  These buffer zones and many others may be in jeopardy if the Court rules against Massachusetts.   

Mary Jean Dolan,  International Municipal Lawyers Association Special Counsel, wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association