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Briefs Recently Filed

Town of Chester v. Laroe Estates 

In its Supreme Court amicus brief in Town of Chester v. Laroe Estates the State and Local Legal Center (SLLC) argues that interveners to lawsuits must have standing even if there is a genuine case or controversy between the existing parties.

Steven Sherman sued the Town of Chester alleging an unconstitutional taking as the town refused to approve a subdivision on plots of land Sherman intended to sell to Laroe Estates. Laroe Estates advanced Sherman money for the land in exchange for a mortgage on the property. Sherman defaulted on a loan to a senior mortgage holder who foreclosed on the property.

Laroe Estates, claiming to be the owner of the property, sought to “intervene” in the takings lawsuit. The Federal Rule of Civil Procedure grant non-parties the right to intervene who “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.”  

The district court concluded that Laroe Estates lacked Article III “standing” under the U.S. Constitution to assert a takings claim against the Town. Laroe Estates argued that it was a “contract vendee” of the Sherman property. According to the district court, under longstanding circuit court precedent “contract vendees lack standing to assert a takings claim.”

The question the Supreme Court will decide in Town of Chester v. Laroe Estates is whether Laroe Estates may intervene in this case even though it lacks standing.

The Second Circuit held, based on prior circuit court precedent, Laroe Estates does not have to have standing to intervene in this lawsuit where there is a genuine case or controversy between the existing parties (here Sherman and the Town of Chester). Of the ten federal circuit courts of appeals to have ruled on this issue three have held interveners must have Article III standing.

The SLLC amicus brief argues that allowing parties without standing to intervene prolongs and complicates litigation ultimately making it more expensive. “The consequences are even more serious in cases involving state and local governments, as the cost of intervention also comes at the expense of taxpayers, complicating litigation (as well as settlement), and forcing government entities to continue to litigate in order to avoid allowing third-parties to control the results of the litigation, which can have significant public policy consequences.”

Sarah Shalf of the Emory Law School Supreme Court Advocacy Program wrote the SLLC amicus brief which was joined by the National Association of Counties, National League of Cities, United States Conference of Mayors, and the International Municipal Lawyers Association.  

Coventry Health Care of Missouri v. Nevils

State and local governments would not be disappointed if the Supreme Court overturned Chevron v. NRDC (1984). While overturning Chevron isn’t on the table in Coventry Health Care of Missouri v. Nevils, limiting it is. The State and Local Legal Center (SLLC) asked the Court in its amicus brief to rule that Chevron deference does not apply when an agency is construing the scope of a statute’s preemption provision, absent Congress’s assent.

In Chevron v. NRDC the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power. 

The facts of this case aren’t of particular interest to state and local governments. After the Missouri Supreme Court ruled that the Federal Employees Health Benefits Act’s (FEHBA) preemption clause does not preempt a Missouri law, the agency that administers FEHBA promulgated a rule saying FEHBA’s preemption clause preempts the Missouri law. The Missouri Supreme Court, refusing to apply Chevron deference to the agency’s rule interpreting FEHBA’s preemption clause, again ruled that FEBHA doesn’t preempt Missouri law.

The SLLC amicus brief agrees with the Missouri Supreme Court that regulations interpreting preemption clauses should not receive Chevron deference unless Congress has “directly and unequivocally” authorized the agency to determine the scope of a preemption clause.

The brief points out that “agency interpretations that preempt state law raise questions not only about the separation of powers among the federal branches, but also about the appropriate balance of power between state and federal governments.”  “[A]gencies are specialized institutions focused on achieving their narrow regulatory objectives—often insensitive to the specific concerns of state and local governments—[and] courts are far better suited to resolve these questions of constitutional federalism with a broad and unbiased focus.”

All of the “Big Seven” (the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, and the International City/County Management Association) joined the brief which was written by William Stein, Scott Christensen, Sam Cowin, Eleanor Erney, and Stephen Halpin of Hughes Hubbard & Reed

Packingham v. North Carolina

The issue the Supreme Court will decide in Packingham v. North Carolina is whether a North Carolina statute prohibiting registered sex offenders from accessing social networking websites where they know minors can create or maintain a profile violates the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues this law does not violate the First Amendment.

Lester Packingham was charged with violating the North Carolina statute because he accessed Facebook. In the posting that got him in trouble Packingham thanked God for the dismissal of a ticket.

If a statute limits speech based on content it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argues that the North Carolina law isn’t content-based. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles.    

The brief also urges the Court to defer to state and local governments in their “good-faith attempt to solve a vexing social problem.” “Social media has become so integral to many young teenagers’ identities that, when their vulnerability leads to an encounter with a predator, they may not tell their parents for fear of losing their access to this part of their lives.”

Finally, the brief encourages the Court to resist Packingham’s assertion that the statute has an implausibly broad scope. “Packingham’s conviction arose from his access to Facebook—conduct that was squarely within the language and intended scope of the statute. The suggestion by Packingham and his amici that the statute would bar sex offenders’ access to news websites such as nytimes.com, and that it would be a crime to accidentally access a covered site, is inconsistent with the statutory text.”

John Neiman and Braxton Thrash of Maynard Cooper & Gale wrote the SLLC amicus brief which was joined by the Council of State Governments, the International City/County Management Association, and the International Municipal Lawyers Association.

County of Los Angeles v. Mendez 

In its amicus brief in County of Los Angeles v. Mendez the State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, where any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.

Everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them. The Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant in violation of the Fourth Amendment to search the shack thereby “provoking” Mendez.

Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.

In this case the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “[W]here an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

The SLLC urges the Supreme Court to reject the “provocation” rule for a number of reasons. First, it holds officers liable even when they use reasonable force, contrary to Supreme Court precedent holding officers liable only for excessive force. Second, it punishes officers who may need to use force to save lives. For example, imagine if in this case Mendez really had a rifle and intended to shoot to officers at his door. Finally, the brief points out that the absence of a warrant in this case didn’t cause Mendez’s injuries. The exact same injuries would have occurred if the officers had performed the same search the same way with a warrant.

Dan Collins, Mark Yohalem, and Seth Fortin of Munger, Tolles & Olson wrote the brief which was joined by the National Association of Counties, National League of Cities, International City/County Management Association, International Municipal Lawyers Association, California State Association of Counties, League of  California Cities, and the National Sheriffs Association.

Expressions Hair Design v. Schneiderman

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 AssociationNational Association of Counties, National League of CitiesUnited States Conference of MayorsInternational City/County Management Association, and International Municipal Lawyers Association.

Bank of America v. City of Miami

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 CitiesUnited States Conference of MayorsInternational City/County Management Association, and the International Municipal Lawyers Association.          

Murr v. Wisconsin 

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 GovernmentsNational Association of Counties, National League of CitiesUnited States Conference of MayorsInternational City/County Management Association, and the International Municipal Lawyers Association.