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National Law Journal Article about the SLLC

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

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Briefs Recently Filed

Direct Marketing Association v. Brohl

The SLLC filed an amicus brief encouraging the Supreme Court to not hear a case arguing that a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional.

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In 2010 the Colorado legislature passed the law described above to improve sales tax collection. The Direct Marketing Association sued Colorado claiming the law unconstitutionally discriminates against interstate commerce and is unconstitutional under Quill.   

In February 2016 in Direct Marketing Association v. Brohl, the Tenth Circuit concluded the Colorado law doesn’t discriminate against interstate commerce. DMA was unable to point to any evidence that the notice and reporting requirements imposed on out-of-state retailers are more burdensome than the sales tax collection and administration requirements imposed on in-state retailers. Quill does not apply to the law, the Tenth Circuit reasoned, because it “applies narrowly to sales and use tax collection.”

DMA filed a petition for certiorari asking the Supreme Court to review the Tenth Circuit’s ruling that Colorado’s law discriminates against interstate commerce.

The SLLC amicus brief argues that the Tenth Circuit ruled correctly on the interstate commerce question and that the only “interesting and important” question lurking in this case is whether the Supreme Court should overrule Quill.

In March 2015 the Supreme Court held unanimously that the Tax Injunction Act did not bar the Tenth Circuit (instead of a state court) from deciding whether Colorado’s law was unconstitutional. Justice Kennedy wrote a concurring opinion, which appeared to rely on the SLLC’s amicus brief, stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”

DMA’s cert petition doesn’t raise the question of whether Quill should be overturned. However, the SLLC amicus brief points out that if the Court is interesting in taking on this question it will be before the Court in no time. “Three States have already taken affirmative steps to challenge Quill head on, passing carefully tailored legislation or administrative rules that precisely frame the question whether [Quill’s] ‘physical presence’ standard should be replaced with an ‘economic nexus’ rule under which sellers can be required to collect state sales tax if they transact a large amount of business in a given state.”

The SLLC urges the Supreme Court to wait and accept one of these cases when they are ready for Supreme Court review and overrule Quill.

Eric Citron, Goldstein & Russell and Ron Parsons, Johnson Janklow Abdallah Zeiter & Parsons wrote the SLLC brief which the following organizations joined: 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, the International City/County Management Association, the International Municipal Lawyers Association, and the Government Finance Officers 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.          

Ivy v. Morath 

In Ivy v. Morath the Supreme Court will decide when state and local governments are responsible for ensuring that a private actor complies with the Americans with Disabilities Act (ADA). The State and Local Legal Center (SLLC) argues they should be responsible when the private actor may fairly be said to be implementing a service, program, or activity of the public entity itself.

In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license. None of the schools would accommodate deaf students. So a number of deaf students sued the Texas Education Agency (TEA) arguing it was required to bring the driver education schools into compliance with the ADA.  

The ADA states that no qualified individual with a disability may be excluded from participation in or be denied the benefits of public entity “services, programs, or activities” because of a disability. The Fifth Circuit concluded that the ADA does not apply to the TEA because it does not provide “services, programs, or activities.” “Here, the TEA itself does not teach driver education, contract with driver education schools, or issue driver education certificates to individual students.”

A dissenting judge concluded the TEA was responsible for enforcing the ADA in this case because “even though the driving schools perform the actual day-to-day instruction, instruction is but one component of the broader program of driver education that is continually overseen and regulated in discrete detail by TEA.”

The SLLC amicus brief was filed on the side of neither party. It argues that the test shouldn’t be whether the state or local government is providing the service but instead whether a private actor may fairly be said to be implementing a service, program, or activity of the public entity. Agreeing with the majority opinion (and disagreeing with the dissenting opinion) in this case, the SLLC brief also argues that no amount of regulation or licensing of a private actor requires a state or local government to enforce the ADA against a private actor.

Finally, the SLLC brief concedes that under its test the TEA would be required to ensure that the driver education schools comply with the ADA. But it notes that “the Texas driver education program at issue here presents a highly unusual, and perhaps unique, example of a situation where a public entity’s licensing requirements for private persons may fairly be said to represent implementation of the public entity’s services, programs or activities.”

Richard A. Simpson, Tara Ward, and Emily Hart, Wiley Rein, 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.         

Manuel v. City of Joliet

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 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.