Briefs Recently Filed
The question the Supreme Court will decide in Expressions Hair Design v. Schneiderman is whether state “no-surcharge” laws that prohibit vendors from charging more to credit-card customers but allows them to charge less to cash customers violate the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues these laws don’t violate the First Amendment because they regulate conduct rather than speech.
Per a “no-surcharge” law if the regular price of an item is $100 credit-card customers may not be charged $103 and cash customers $100. But if the regular price is $103 credit-card customers may be charged $103 and cash customers $100.
From 1976 to 1984 Congress prohibited vendors from passing on credit-card “swipe fees” (about 2-3 percent charged per transaction to merchants) to credit-card users. When the law expired eleven states, including New York, passed “no-surcharge” laws.
These laws were ignored until recently because credit-card contracts with vendors prohibited vendors from imposing surcharges on credit-card customers. Visa and MasterCard have dropped this requirement in their contracts pursuant to a nationwide anti-trust lawsuit.
Expressions Hair Design would like to charge three percent more to credit card customers for its goods and services but is prohibited from doing so by New York’s “no-surcharge” law, Section 518. Expressions claims that Section 518 violates the First Amendment.
The SLLC amicus brief argues that “no-surcharge” laws regulate prices and not speech or expressive conduct. Expressive conduct triggers First Amendment scrutiny when it conveys a particular message—like burning the flag conveys displeasure with the federal government. “The only particularized message a price inherently expresses is the price itself.”
The SLLC brief also argues that the Supreme Court’s decision in Reed v. Town of Gilbert, Arizona (2015) should not change how the Court views this case. In Reed the Court struck down the Town of Gilbert’s sign code because it disfavored temporary event signs over political and ideological signs. Reed stands for the proposition that a law can’t escape First Amendment strict (fatal) scrutiny review because an entire topic (i.e. temporary events signs announcing any event) are disfavored. All temporary event signs convey a particularized message--unlike a price.
Finally, the brief point out state legislatures have had the authority to regulate prices since the Revolution. “No-surcharge” laws provide consumers protection because multiple prices are confusing and credit-card surcharges have no ceiling.
Charles Rothfeld, Andrew Pincus, Paul Hughes, and Michael Kimberly, Mayer Brown wrote the SLLC brief which the following organizations joined: National Governors Association, National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.
In its Supreme Court amicus brief in Wells Fargo v. City of Miami and Bank of America v. City of Miami the State and Local Legal Center (SLLC) argues that Miami, and other local governments across the country, should have “standing” to sue banks under the Fair Housing Act (FHA) for economic harm caused to local governments by discriminatory lending practices.
The City of Miami claims that Wells Fargo and Bank of America targeted black and Latino customers in the City for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers. The City further claims the banks’ lending policies caused minority-owned property to fall into unnecessary or premature foreclosure.
The FHA makes it unlawful for banks to discriminate against mortgage recipients on the basis of race. To bring a lawsuit under the FHA the City of Miami must have “statutory standing,” in other words, “a cause of action under the statute.”
The FHA allows “aggrieved person[s]” to sue. The banks argue that in Thompson v. North American Stainless (2011), the Supreme Court defined “aggrieved person,” under another federal statute, to require that a plaintiff fall within the zone of interests protected by the statute and have injuries proximately caused by the statutory violation. Unsurprisingly, the banks argue that the City doesn’t fall within the zone of interests protected by the FHA and that the banks’ conduct didn’t cause economic injury to the City.
The Eleventh Circuit concluded Miami had statutory standing relying on a much 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. So if the Court agrees that only Article III standing is required to also have statutory standing, Miami has statutory standing to sue the banks.
The SLLC’s amicus brief argues local governments should have standing to sue bank for two reasons. First, discriminatory lending diminishes a local government’s tax base. Specifically, foreclosures deprive local governments of revenue. When foreclosed properties sell, their prices are discounted by about 30 percent, reducing a local government’s tax base. Foreclosed properties also diminish the value of neighboring properties. Second, foreclosed properties are expensive. Local governments “must provide substantially more public services—and expend far more public funds—to maintain these abandoned homes.”
At least 12 other cities and counties have brought similar lawsuits against banks.
Deepak Gupta, Rachel Bloomekatz, and Matthew Spurlock of Gupta Wessler, wrote the SLLC brief, which was joined by the National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and the International Municipal Lawyers Association.
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 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 in 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).
The Seventh Circuit concluded that if malicious prosecution violates the federal constitution, cases must be brought as due process claims not Fourth Amendment claims. The lower court found no violation of federal due process in this case because Illinois allows state malicious prosecution claims to be brought.
The State and Local Legal Center (SLLC) amicus brief argues that plaintiffs should not be able to bring “malicious prosecution” claims under the Fourth Amendment. The Fourth Amendment forbids unreasonable searches and seizures, not unwarranted or malicious prosecutions. More practically speaking, if the City of Joliet loses this case it may be possible for very stale Fourth Amendment malicious prosecution claims to be brought against state and local governments. An argument could be made that people who were maliciously prosecuted and served time didn’t “prevail” until they got out of jail or prison, in some instances years after they were arrested.
Larry Rosenthal, Chapman University, Fowler School of Law, wrote the SLLC’s amicus brief which was joined by the National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and the International Municipal Lawyers Association.
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 State and Local Legal Center (SLLC) filed an amicus brief arguing that these very common provisions are constitutional.
The Murrs owned contiguous lots E and F which together are .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. And state court precedent indicated that the lots should be considered in combination for purposes of takings analysis.
The SLLC brief argues that mergers provisions have been common for over half a century and their constitutionality has never been in doubt. The brief points out that minimum lot size requirements are a common way of avoiding congestion. When a lot is nonconforming (too small now that a minimum lot size has been adopted) merger (where the owner of a nonconforming lot also owns another contiguous lot the two lots are viewed as one for zoning purposes) is the solution.
“Merger provisions became common because local governments and state courts recognized that they represent an appropriate middle ground between two unattractive extremes—prohibiting the development of substandard lots, which would be a hardship to their owners, and allowing the development of all substandard lots, which would be a hardship to neighbors and the community.”
Stuart Banner of the UCLA School of Law Supreme Court Clinic 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.