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Briefs Recently Filed

Birchfield v. North Dakota 

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 which was joined by the Council of State GovernmentsNational Association of Counties, National League of CitiesUnited States Conference of MayorsInternational City/County Management Association, and the International Municipal Lawyers Association. 

United States Army Corp of Engineers v. Hawkes

The issue in U.S. Army Corp of Engineers v. Hawkes 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 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 GovernmentsNational 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.  

United Student Aid Funds v. Bible

The State and Local Legal Center (SLLC) for the first time ever has asked the Supreme Court to accept and decide a case. The SLLC is asking the Court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies.  

In Auer v. Robbins (1997) the Supreme Court reaffirmed its holding in Bowles v. Seminole Rock & Sand Co. (1945) that courts must defer to an agency’s interpretation of its own regulations (even if that interpretation is articulated for the first time in an amicus brief during litigation).

SLLC members decided to take the rare step and ask the Court to decide whether to overturn Auer deference for a number of reasons. First, Auer deference negatively affects state and local governments because they are regulated by federal agencies and regulate in the same space as federal agencies. Second, Auer deference gives agencies a lot of authority in every area in which any agency regulates. Finally, the Court may be ready to reconsider Auer deference. Notably in Perez v. Mortgage Bankers Association (2015) “three Justices (including Auer’s author [Justice Scalia]) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking.” 

The SLLC amicus brief argues that Auer deference should be overturned because it creates incentives for agencies to promulgate vague regulations which they can then interpret as they like outside of the notice-and-comment process. More specific to state and local governments, Auer deference “curtails their ability to participate fully in cooperative federalism schemes; complicates and disrupts their statutory and regulatory regimes that incorporate federal guidance; and intensifies the risk to federalism posed by the ever-expanding scope of federal agency authority.”

Here is what happened in this case. Per the Higher Education Act, a borrower who has defaulted on student loans is required to pay “reasonable collection costs.” Department of Education (DOE) regulations state that if a first time borrower defaults but enters into and complies with a “repayment” agreement, assessing collections cost is unreasonable. DOE filed an amicus brief in this case interpreting its regulations to mean it would be unreasonable to assess collection costs against someone who entered into a “rehabilitation” agreement.  

Ashley Johnson, Benjamin Wilson, and Bradley Hubbard of Gibson, Dunn & Crutcher wrote the SLLC brief. The following organizations joined the brief:  National Governors Association, National Conference of State Legislatures, International Municipal Lawyers AssociationNational Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, Government Finance Officers Association, and National School Boards Association.