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Briefs Recently Filed

Christie v. NCAA 

In Christie v. National Collegiate Athletic Association New Jersey Governor Chris Christie argues that because the Professional and Amateur Sports Protection Act (PASPA) prohibits the state from repealing laws restricting gambling it amounts to unconstitutional commandeering. The State and Local Legal Center (SLLC) filed an amicus brief supporting Christie.

PASPA, adopted in 1992, makes it unlawful for states and local governments to authorize gambling.

New Jersey first amended its constitution to allow some sports gambling. The Third Circuit held that doing so violated PASPA as an “authorization” of gambling but concluded that repealing restrictions on sports gambling would be okay. New Jersey then passed a law repealing restrictions on sports gambling. The Third Circuit changed course ruling the repeal violates PASPA. It reasoned that the repeal “authorizes sports gambling by selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling.”

Per the anti-commandeering doctrine, “Congress ‘lacks the power directly to compel the States to require or prohibit’ acts which Congress itself may require or prohibit.” In both cases Christie argued that PASPA unconstitutionally commandeers states in violation of the Tenth Amendment. The Third Circuit concluded PASPA is constitutional reasoning that it “does not command states to take affirmative actions, and it does not present a coercive choice.”

The SLLC amicus brief argues that, regarding sports gambling, the Third Circuit decision leaves states with only one viable option:  freeze bans in place enacted before PASPA. But, “Congress cannot, on the one hand, fail to preempt the field by way of enacting a federal regime for the regulation of sports wagering and, on the other hand, prevent states from taking any meaningful action to revise their laws to reflect constituent opinion.”

Beyond sports gambling, the SLLC amicus brief also argues that “rationale of the Third Circuit’s decision upholding its reading of PASPA would permit Congress to order state and local governments to freeze state and local law . . . on other issues of critical importance,” ranging from issues such as physician-assisted death for the terminally ill to self-driving cars. 

Richard A. Simpson, Tara Ward, and Emily Hart, Wiley Rein, wrote the SLLC amicus brief which was joined by the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, National League of Cities, and the International Municipal Lawyers Association.


Artis v. District of Columbia 

The very simple question in Artis v. District of Columbia is what does it mean for a statute of limitations to “toll” under 28 U.S.C 1367(d)? The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief agreeing with the District of Columbia’s interpretation of “toll.”

A year after the fact, Stephanie Artis sued the District of Columbia in federal court bringing a number of federal and state law claims related to her termination as a code inspector. It took the federal district court over two and a half years to rule on her claims. It dismissed her sole federal claim as “facially deficient” and no longer had jurisdiction to decide the state law claims.

28 U.S.C 1367(d) states that statutes of limitations for state law claims pending in federal court shall be “tolled” for a period of 30 days after they are dismissed (unless state law provides a longer tolling period).

While Artis was waiting for the federal district court to rule the three-year statutes of limitations on all her state law claims passed. She waited 59 days to refile her claims in state court after the federal district court dismissed her case.

Was her claim timely? The District of Columbia Court of Appeals held no.   

Under the suspension theory the state statute of limitations freeze on the day the federal suit is filed and unfreeze with the addition of 30 days when the federal lawsuit is dismissed. Under this theory Artis would have about two years to refile her lawsuit in state court.

Under the grace-period theory if the state statute of limitations would have expired while the federal case was pending, a litigant has 30 days from federal court dismissal to refile in state court. Under this theory Artis’s lawsuit in state court is time barred because she waited longer the 30 days to refile in state court. 

The SLLC amicus brief argues in favor of the grace-period theory. As this case illustrates, local governments are regularly sued in cases involving federal and state law claims. The longer the tolling period the greater the costs and burden are on resource constrained local governments. The brief also points out that many states have state law tolling provisions longer 30 days which would be preempted per Artis’s interpretation, “despite the fact that state statutes of limitations schemes reflect careful balancing of competing policy concerns that are the province of state legislatures.”  

Katharine Mapes, William Huang, and Jeffrey Bayne, Spiegel & McDiarmid wrote the SLLC’s brief which the following organizations joined:  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, and the International Municipal Lawyers Association.

Husted v. A. Philip Randloph Institute

In Husted v. A. Philip Randolph Institute the Supreme Court will decide whether federal law allows states to remove people from the voter rolls if the state sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years.

While Ohio is being sued in this case twelve other states use a similar process. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Ohio.

The National Voter Registration Act (NVRA) says that roll maintenance procedures “shall not result in” people being removed from the polls for failure to vote. The Help America Vote Act modified the NVRA to say that states may remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles.

The Sixth Circuit struck down Ohio’s scheme reasoning that it “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.” According to the lower court the problem with Ohio’s scheme is that the “trigger” for someone being removed from the voter rolls is their failure to vote.

Ohio argues that it doesn’t remove voters “’by reason of’ their failure to vote; it removes voters ‘by reason of’” their failure to respond to a notice. The state also claims that the NVRA doesn’t regulate what triggers the confirmation notice.

The SLLC amicus brief points out that hundreds, if not thousands, of states and local governments are tasked with registering voters and maintaining voter rolls. Processes vary based on factors including state law and resources; so, states and local governments need clear direction and flexibility regarding what process they may use to maintain voter rolls. The brief points out that while in this case Ohio is being sued for the process it uses to take people off the rolls, states and local governments have been sued for keeping ineligible voters on the rolls.

Joshua Davis, Reed Smith wrote the SLLC brief which the following organizations joined: 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, and the International Municipal Lawyers Association.

District of Columbia v. Wesby

Imagine how often when police officers are deciding whether to arrest someone they are told a version of a story they don’t find believable. In a Supreme Court amicus brief in District of Columbia v. Wesby the State and Local Legal Center (SLLC) argues that the D.C. Circuit erred by applying an inflexible rule that when officers are making arrest decisions they must believe a suspect’s version of the story, even when circumstantial evidence indicates otherwise.

In this case police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.

The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” They partygoers claimed they did not know they lacked permission to be in the house.  

D.C. Circuit granted the partygoers summary judgment reasoning the police officers lacked probable cause to make the arrest for trespass because:  “All of the information that the police had gathered by the time of the arrest made clear that Plaintiffs had every reason to think that they had entered the house with the express consent of someone they believed to be the lawful occupant.”

Dissenting Judge Brown concluded that summary judgment was inappropriate in this case where “the probable cause determination [that trespass occurred] turns on close questions of credibility, as well as the reasonability of inferences regarding culpable states of mind that officers draw from a complicated factual context.” Evidence (like the host not being there, the different reasons cited for the party, the lack of furnishing in the house, etc.) cast doubt on the credibility of the partygoers’ statements that they believed they had permission to enter the house.

The SLLC amicus brief points out that police officers encounter numerous situations that require split-second decision-making. For this reason the Supreme Court “has consistently assessed police officers’ decisions to search and arrest under a flexible probable cause standard that gives deference to the officers’ experience and expertise.” The brief argues that the D.C. Circuit “deviated from this standard by applying a rigid rule that officers must believe a suspect’s statements, even when circumstantial evidence indicates otherwise.” Discouraging police from relying on their own credibility determinations will have negative repercussions in a wide range of crimes, not only trespass, which will negatively affect public safety.

John J. Korzen, Wake Forest University School of Law Appellate Advocacy Clinic, wrote the SLLC brief which was joined by the National Association of Counties, National League of Cities, International City/County Management AssociationInternational Municipal Lawyers Association, and the National Sheriffs Association.