Briefs Recently Filed
In City & County of San Francisco v. Sheehan the Supreme Court will decide whether, pursuant to the Americans with Disabilities Act (ADA), police must accommodate a suspect’s mental illness when arresting him or her. The State and Local Legal Center (SLLC) argues no because no conclusive evidence indicates that accommodating mentally ill suspects reduces injuries or the use of force.
When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated. When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her. Sheehan survived.
Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.
Sheehan argues that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room. Her proposed accommodations included: respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation.
The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests. The ADA applies broadly to police “services, programs, or activities,” which the Ninth Circuit interpreted to mean “anything a public entity does,” including arresting people. The court refused to dismiss Sheehan’s ADA claim against the city reasoning that whether her proposed accommodations are reasonable is a question of fact for a jury.
The Ninth Circuit also concluded that reentry into Sheehan’s room violated the Fourth Amendment because it was unreasonable. Although Sheehan needed help, “the officers had no reason to believe that a delay in entering her room would cause her serious harm, especially when weighed against the high likelihood that a deadly confrontation would ensue if they forced a confrontation.”
State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”
The Ninth Circuit refused to grant the officers qualified immunity related to their reentry: “If there was no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known that this use of force was excessive.” The Court will review the Ninth Circuit’s qualified immunity ruling.
The SLLC’s amicus brief argues that the ADA should not apply to arrests. While few police departments have the resources to adopt specialized approaches to responding to incidents involving the mentally ill, no conclusive evidence indicates that these approaches reduce the rate or severity of injuries to mentally ill suspects. No one-size fits-all approach makes sense because police officers encounter a wide range of suspects with mental illnesses. And even psychiatrists—much less police officers who aren’t mental health professionals—cannot predict with any reasonable degree of certainty whether an armed suspect with a mental illness will harm himself or herself or others in an emergency. Finally, because the officers in this case could not predict whether Sheehan would harm herself or others if they did not reenter her room, they are entitled to qualified immunity.
Orry Korb, Danny Chou, Greta Hanson, and Melissa Kiniyalocts, County of Santa Clara, California wrote the SLLC's amicus brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, and the United States Conference of Mayors.
A Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants. Motel operators claim this ordinance is facially invalid under the Fourth Amendment. The Ninth Circuit agreed, because the ordinance fails to expressly provide for pre-compliance judicial review before police can inspect the registry.
The SLLC filed an amicus brief in Los Angeles v. Patel arguing that Fourth Amendment facial challenges should be disfavored and that if the ordinance in this case is unconstitutional similar hotel registry ordinances across the country—and laws and ordinances requiring record keeping and inspection of other businesses—may be unconstitutional.
A facial challenge to the ordinance in this case requires a court to determine whether all searches that might be conducted pursuant to the ordinance are unconstitutional (as opposed to an as-applied challenge where the court would decide whether a particular search under the ordinance violates the Fourth Amendment).
The SLLC argues that Fourth Amendment facial challenges don’t make sense because whether a search violates the Fourth Amendment depends on whether it is reasonable, which is necessarily a fact-based determination. Under some set of facts almost any search would be reasonable. For example, depending on the facts, warrantless searches of hotel registries could be reasonable under the “community care-taking exception,” because the registry is “in plain view,” or because of “exigent circumstances.”
The SLLC’s brief notes that hotel registry ordinances are very common and all may be invalidated if the Court concludes Los Angeles’s ordinance violates the Fourth Amendment. Los Angeles cites two state laws (Maine, Massachusetts) and over 100 hotel registry ordinances from 28 states. The SLLC’s brief points out that at least 70 California cities have such ordinances as do cities in 15 additional states. Finally, in many states mobile home parks, second-hand dealers like pawnshops and junkyards, scrap metal dealers, and massage parlors are subject to registration and inspection laws and ordinances. These measures may be called into question if Los Angeles’s hotel registry ordinance is struck down.
Tom McCarthy, William Consovoy, and Michael Connolly of Consovoy McCarthy and the George Mason University School of Law Supreme Court Clinic wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association.
The Supreme Court’s decision in Reed v. Town of Gilbert, Arizona could upset sign codes nationally. Most sign codes, like Gilbert’s, include different categories of temporary signs. It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs. In this case the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs. The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.
Gilbert’s Sign Code includes temporary directional signs, political signs, and ideological signs. After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert. The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.
The Ninth Circuit ruled that Gilbert’s Sign Code does not violate the First Amendment because the distinctions between the three sign categories are “content-neutral”; all signs in each category are treated the same regardless of their content even if the three categories of signs are treated differently. Because the lower court concluded that the sign categories are “content-neutral,” it applied intermediate scrutiny rather than strict scrutiny. The different treatment of temporary signs would not serve a “compelling” government interest as strict scrutiny requires, but does serve a “significant” government interest as intermediate scrutiny requires.
The SLLC’s amicus brief argues that Gilbert’s Sign Code does not violate the First Amendment. Sign codes with multiple categories of temporary signs, usually classified by function, with their own time, place, and manner requirements, are common. And the fact that a temporary sign must be read to determine what kind of temporary sign it is does not render a sign code “content-based.” Finally, even when the three categories of temporary signs at issue in this case are compared with each other, they are regulated by purpose, rather than by content, meaning strict scrutiny should not apply.
Bill Brinton, Rogers Towers wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, the American Planning Association, and Scenic America.
In Direct Marketing Association v. Brohl the Supreme Court will decide whether a federal court is barred from deciding a constitutional challenge to a Colorado law that requires remote sellers who don’t collect state sales tax to comply with notice and reporting requirements.
Per the Supreme Court’s 1992 decision in Quill Corp. v. North Dakota states cannot require retailers with no in-state physical presence to collect state sales tax. To improve tax collection, in 2010 the Colorado legislature began requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue.
The Tax Injunction Act (TIA) states that federal courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law” where a remedy is available in state court. Regardless, Direct Marketing Association (DMA) challenged the constitutionality of Colorado’s law in federal court. DMA argued that the TIA does not apply in this case because DMA isn’t a taxpayer and Colorado “neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.” The Tenth Circuit disagreed and dismissed DMA’s lawsuit.
The State and Local Legal Center’s (SLLC) amicus brief, filed in support of Colorado, points out that state and local governments are losing an estimated $23 billion in annual tax revenue to remote sales. DMA is seeking to invalidate third-party reporting requirements, which are an effective method of collecting such taxes. The SLLC’s brief argues that DMA’s lawsuit falls within the TIA’s bar because DMA seeks to prevent the “assessment” and “collection” of a state tax and precedent indicates that it does not matter that DMA isn’t a taxpayer.
Until Congress passes the Marketplace Fairness Act, which would authorize states to require remote vendors to collect sales tax, states will continue to experiment with methods to collect sales tax owed but not paid. According to NCSL, at least three other states (Oklahoma, South Dakota, and Vermont) have recently enacted reporting requirements on remote sellers.
Ron Parsons of Johnson, Heidepriem & Abdallah in Sioux Falls, South Dakota, wrote the SLLC’s brief which was joined by all of the Big Seven and the Government Finance Officers Association.
In Perez v. Mortgage Bankers Association the Court will decide whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an interpretive rule that interprets an agency regulation.
In 2006 the Department of Labor (DOL) issued an opinion letter stating that mortgage loan officers who work more than 40 hours a week were exempt from overtime under the Fair Labor Standards Act. In 2010 DOL withdrew the opinion letter in an “Administrator’s Interpretation” that reached the opposite conclusion. Since 1997 the D.C. Circuit’s rule has been that if an interpretive rule is definitive and an agency makes a significant change to it, the agency must first conduct notice-and-comment rulemaking. The D.C. Circuit reasoned that significantly changing an interpretation of a regulation amounts to effectively changing the regulation, which requires notice-and-comment.
State and local governments often regulate in the same space as federal agencies and are often regulated by federal agencies. The SLLC’s amicus brief argues that requiring notice-and-comment for significant changes to interpretations of regulations will maintain the balance between agency discretion and reliance interests the APA was designed to protect. It also argues that allowing state and local governments to weigh in on problematic interpretations is far more efficient than state and local governments challenging them through litigation. And allowing greater state and local participation in the process will avoid or at least limit the risk to federalism posed by ever-expanding agency authority.
James Ho, Ashley Johnson, Kirsten Galler, and Lauren Blas of Gibson, Dunn & Crutcher wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, Government Finance Officers Association, National School Boards Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.
Does a state discriminate against rail carriers in violation of federal law even when rail carriers pay less in total state taxes than motor carriers? No, argues a State and Local Legal Center (SLLC) Supreme Court amicus brief in Alabama Department of Revenue v. CSX Transportation. Forty-two states exempt motor carriers from sales tax on diesel fuel.
Rail carriers (railroads) in Alabama pay a four percent sales tax on diesel fuel. Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax. The Railroad Revitalization and Regulatory Reform Act (4-R) prohibits state and local governments from imposing taxes that discriminate against railroads. Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax. But, the Eleventh Circuit refused to compare the total taxation of railroads and trucks to avoid the “Sisyphean burden of evaluating the fairness of the State's overall tax structure.” Instead it concluded Alabama’s sales tax on railroads violates 4-R because Alabama’s competitors don’t pay it.
The SLLC brief argues that given state’s traditional power to tax the Court should interpret 4-R narrowly. The brief suggests the Court could take three approaches to rule in favor of Alabama. First, it could compare the tax treatment of rail carriers to all commercial and industrial taxpayers in the state (who all pay sales tax) instead of only railroad competitors. Second, the Court could ignore the labels of sales and excise tax and compare the amount railroads and their competitors pay in total taxes. Third, the Court could note the relevant differences between railroads and their competitors. For example, water carriers traditionally have been exempt from all taxes on diesel fuel because of constitutional concerns about taxing vessels in navigable waters.
Finally the SLLC brief points out that “[r]uling in favor of CSX would threaten States’ ability to take in tax revenue, an ability already impeded by current economic conditions. This Court must not allow 4-R to shield CSX—a $12 billion nationwide corporation—and other rail carriers from paying millions of dollars in taxes that fund vital public services. Congress did not intend for 4-R to enrich large corporations by impoverishing the States.”
All of the Big Seven joined the SLLC brief along with SLLC associate members the International City/County Management Association and the Government Finance Officers Association. Sarah Shalf of the Emory Law School Supreme Court Advocacy Project wrote the SLLC brief.
In Comptroller v. Wynne the Court will determine whether the U.S. Constitution requires states to give a credit for taxes paid on income earned out-of-state.
Forty-three states and nearly 5,000 local governments tax residents’ income. Many of these jurisdictions do not provide a dollar-for-dollar tax credit for income taxes paid to other states on income earned out-of-state. A decision against Maryland’s Comptroller in this case will limit state and local government taxing authority nationwide.
The Wynnes of Howard County, Maryland, received S-corporation income that was generated and taxed in numerous states. Maryland’s Tax Code includes a county tax. While Maryland law allowed the Wynnes to receive a tax credit against their Maryland state taxes for income taxes paid to other states, it did not allow them to claim a credit against their Maryland county taxes.
Maryland’s highest state court held that Maryland’s failure to grant a credit against Maryland’s county tax violated the U.S. Constitution’s dormant Commerce Clause, which denies states the power to unjustifiably discriminate against or burden interstate commerce. Among other things, the Maryland Court of Appeals noted that if every state imposed a county tax without a credit, interstate commerce would be disadvantaged. Taxpayers who earn income out of state would be “systematically taxed at higher rates relative to taxpayers who earn income entirely within their home state.”
The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief points out that state and local governments must make complex policy choices and tradeoffs when devising a taxing system. If Maryland was required to provide a dollar-for-dollar tax credit, a neighbor with substantial out-of-state income would contribute significantly less to pay for local services than a neighbor earning the same income in-state, even though both take equal advantage of local services. And to counterbalance a dollar-for-dollar tax credit, a county would need to raise some other tax, which would fall disproportionately on some other neighbor and often be more regressive. The brief argues that Maryland’s policy choice to avoid these results “does not cross any constitutional line.”
Paul Clement and Zack Tripp of Bancroft wrote the SLLC/IMLA brief. The National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the Government Finance Officers Association joined the brief.
The Court will decide in North Carolina State Board of Dental Examiners v. FTC whether state boards with members who are market participants elected by their peers must be “actively supervised” to be exempt from federal antitrust law.
The North Carolina State Board of Dental Examiners is a state agency primarily made up of dentists elected by other dentists. The Board, which has the power to enjoin the unlicensed practice of dentistry, successfully expelled non-dentist providers from the North Carolina teeth-whitening market. The Federal Trade Commission found that the Board engaged in unfair competition in violation of federal antitrust law.
The state action doctrine exempts states from federal antitrust law. It applies to private parties if they are acting pursuant to a clear state policy of anti-competition and are being actively supervised by the state; substate actors only have to be acting pursuant to a clear state policy. The Board argued that it does not need to be actively supervised because it is a state agency. The lower court disagreed concluding that when the majority of a state agency is made up of market participants who are chosen and accountable to fellow market participants, active supervision is required. The court reasoned that a state agency may not “foster anti-competitive practices for the benefit of its members.”
The SLLC’s brief points out that states typically have hundreds of boards and commissions that are prohibited by state law from engaging in self-interested decision making, meaning active supervision is unnecessary. The SLLC’s brief also argues that precedent and the practical difficulty of actively supervising hundreds of boards and commissions indicate active supervision should not be required.
Seth P. Waxman, Thomas G. Sprankling, and Alan Schoenfeld of WilmerHale wrote the SLLC’s brief. The National Governors Association, the National Conference of State Legislatures, and the Council of State Governments joined the brief.