Recent Court Rulings
The Supreme Court held that there must be a “nexus” and “rough proportionality” between the government’s conditions for issuing a land-use permit and the effects of the proposed development even when the government denies the permit and even when the demand is for money. Justice Alito wrote for the Court’s 5-4 majority in Koontz v. St. Johns River Water Management District.
Mr. Koontz sought permits to develop a portion of wetlands that he owned. St. Johns River Water Management District told Koontz he could proceed with the development if he would reduce its impact or, alternatively, pay for improvements on District-owned property several miles away. Koontz refused, was denied a permit, and sued, claiming his property was taken without just compensation.
In two previous Supreme Court cases, Nollan and Dolan, the Court held that the government may condition approval of a permit on the dedication of property to the public as long as there is a “nexus” and “rough proportionality” between the property demanded and the social cost of the applicant’s proposal. The Florida Supreme Court did not apply Nollan and Dolan for two reasons. First, the District had denied the application because Koontz refused to make a concession rather than issuing the permit subject to conditions, and so had not “taken” anything. Second, the District requested money instead of an interest in land.
The Supreme Court reversed the Florida Supreme Court and applied Nollan and Dolan to both permit denials and demands for money. All nine Justices agreed that Nollan and Dolan should apply whether or not the permit is ultimately issued. According to the Court, Nollan and Dolan reflect the reality that the government may abuse the permitting process to coerce people into giving up land by denying a permit worth far more than the property the government wants to take. At the same time, land uses can impose social costs that land dedications can offset. Five Justices agreed that Nollan and Dolan should apply to monetary conditions to avoid the government demanding “extortionate” amounts of money in exchange for a permit. The dissenting Justices were sympathetic to the argument in the State and Local Legal Center’s (SLLC) amicus brief that there is no principled way to distinguish between demands for money in the land use context and taxes.
John Echeverria of Vermont Law School in South Royalton, Vermont and Mark Fenster of Levin College of Law, University of Florida in Gainesville, Florida wrote the SLLC's brief. The National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National League of Cities, the National Association of Counties, the International City/County Management Association, and the International Municipal Lawyers Association signed onto the SLLC's brief.
The Supreme Court held that a requirement that short-haul “drayage trucks” using the Port of Los Angeles bear placards and submit off-street parking plans was preempted by the Federal Aviation Administration Authorization Act (FAAAA). Justice Kagan authored the opinion for a unanimous Court in American Trucking Associations v. City of Los Angeles.
The Port of Los Angeles faced community opposition for a proposed expansion of its facilities. In response, the Port developed a “Clean Truck Program,” asking drayage truck operators to sign a concession agreement that would require them to affix placards to their vehicles with a number for reporting safety or environmental concerns and to develop and submit a plan for off-street parking. To ensure that trucking companies would sign, the Port imposed criminal penalties for any private terminal operator who allowed a noncompliant truck to use the facility.
The FAAAA preempts any state or local “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier.” The Circuit Courts have recognized an exception for governments operating as market participants, which usually applies when they sign private contracts. The American Trucking Association sued on behalf of drayage truck operators, claiming that the Port’s concession agreement violated the FAAAA. The district court and Ninth Circuit both upheld the concession agreement, reasoning that the Port had acted in a non-governmental capacity when it required truckers to agree to its conditions for using its facilities for business purposes.
The Court overturned the lower court rulings, holding that the requirements under the concession agreement were preempted by the FAAAA. According to the Court, even though the requirements were in the form of a private contract, they had the “force and effect of law” because of the criminal penalties for terminal operators. Enforcing a contract through criminal law was a power that only governments had access to, which showed that the Port had been acting more as a regulator subject to the FAAAA than an exempt market participant despite its business-related motives. The Court declined to decide the issue raised in the SLLC’s brief, which argued that the market participant exception should apply even when a federal statute has expressly preempted state action in a given area.
Michael Burger of Roger Williams University School of Law in Bristol, Rhode Island wrote the SLLC’s brief. 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 signed onto the SLLC’s brief.
The Supreme Court held that when police make an arrest supported by probable cause for a serious offense, taking and analyzing a cheek swab of the arrestee’s DNA is reasonable under the Fourth Amendment. Justice Kennedy wrote the Court’s 5-4 opinion in Maryland v. King.
A DNA sample was taken from the inside of Alonzo King’s cheek when he was arrested for assault. His DNA matched with DNA taken from a rape victim. King moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Maryland Court of Appeals agreed with King reasoning that King’s “expectation of privacy is greater than the State’s purported interest in using King’s DNA evidence to identify him.”
The Supreme Court reversed concluding the search was reasonable after weighing the legitimate government interest against the intrusion into King’s privacy. DNA collection furthers the legitimate government interest of safely and accurately identifying persons in custody. And DNA is an “extension of methods of identification long used in dealing with persons under arrest” including photographing and fingerprinting. When compared to the government interest in identification, the “intrusion of a cheek swab to obtain a DNA sample is a minimal one.”
At the time of the opinion, 28 states and the federal government had adopted laws similar to Maryland’s DNA arrest law.
Prashant Khetan, Milind Parekh, Tyler Mertes, and William Pipal of Troutman Sanders in Washington D.C. wrote the SLLC's brief. The National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, and the National Sheriffs' Association signed onto the SLLC's brief.
The Supreme Court held that courts must apply Chevron deference to an agency’s interpretation of a statutory ambiguity concerning the scope of an agency’s jurisdiction. Justice Scalia wrote the Court's 6-3 opinion in City of Arlington, Texas v. FCC.
The Telecommunications Act of 1996 requires state and local governments to act on wireless siting applications “within a reasonable period of time after the request is duly filed.” The Federal Communications Commission (FCC) issued a declaratory ruling determining that a “reasonable period of time” is 90 days or 150 days. Some state and local governments claimed the FCC lacked authority to define this phrase. Relying on circuit precedent the Fifth Circuit held that Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) applies to the question of whether the FCC possessed statutory authority to adopt the 90- and 150-day timeframes.
The Court concluded that courts must defer under Chevron to an agency’s interpretation an ambiguous statute grants it jurisdiction because there is no difference between jurisdictional and nonjurisdictional statutory interpretations. “No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.” The Court rejected an argument in the SLLC’s brief that Chevron deference should not apply here because the FCC has asserted jurisdiction over matters of traditional concern to state and local government. According to the Court, this is a “faux-federalism” argument because this case isn’t a debate about what states are allowed to do, instead it is about whether the FCC or federal courts “draw the lines to which they must hew.”
Tom Merrill of Columbia Law School in New York City wrote the SLLC’s brief which was signed onto by the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the International City/County Management Association, the Government Finance Officers Association, and the National Association of Regulatory Utility Commissioners.
The Supreme Court held that Virginia’s Freedom of Information Act (VFOIA), which grants only Virginians access to public records, violates neither the Constitution’s Privileges and Immunities Clause nor the dormant Commerce Clause. Justice Alito wrote the Court’s unanimous opinion in McBurney v. Young.
Mark McBurney and Roger Hurlbert are citizens of Rhode Island and California respectively. Both were denied information they requested under VFOIA because of citizenship. McBurney requested general policy information about how the Commonwealth’s Division of Child Support Enforcement handles child support claims like his after it delayed nine months in filing a child support petition on his behalf. Hurlbert owns a business that requests real estate tax records and was denied access to real estate records in Henrico County, Virginia. McBurney and Hurlbert sued Virginia claiming violations of the Privileges and Immunities Clause and the dormant Commerce Clause, and the Fourth Circuit affirmed the district court’s motion for summary judgment for Virginia.
The Court rejected the argument that Virginia’s citizens-only FOIA provision violates four fundamental privileges or immunities or the dormant Commerce Clause. VFOIA doesn’t abridge Hulbert’s ability to earn a living in the sense prohibited by the Privileges and Immunities Clause because VFOIA wasn’t enacted for the “protectionist purpose of burdening out-of-state citizens.” Instead it was enacted so that the citizens of the Virginia could hold public officials accountable. VFOIA doesn’t abridge Hulbert’s right to own and transfer property because tax assessment records are not necessary to transfer property. The Court rejected McBurney’s argument that Virginia’s citizens-only FOIA impermissibly burdens his access to Virginia courts because noncitizens are able to engage in discovery and issue subpoenas. The Court agreed with an argument made in the SLLC’s brief that Virginia’s FOIA doesn’t violate the Privileges and Immunities Clause by denying noncitizens the right to access public information because there is no constitutional right to obtain all information provided by FOIA laws. Regarding the dormant Commerce Clause claim the Court stated, “Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather it merely provides a service to local citizen that would not otherwise be available.”
At the time of the Court’s opinion, eight states had citizens-only requirements in their public records statutes.
Stuart Raphael of Hunton & Williams in McLean, Virginia, wrote the SLLC’s brief. The National Conference of State Legislatures, the Council of State Governments, the International City/County Management Association, and the International Municipal Lawyers Association signed onto the SLLC's brief.
The Supreme Court held that a North Carolina statute designating one-third of a tort recovery as medical expenses is preempted by the federal Medicaid statute. Justice Kennedy wrote the opinion for a Court divided 6-3 in Wos v. E.M.A.
E.M.A suffered serious injuries during her birth that will require extensive care for her entire life and prevent her from being able to live independently as she grows older. Her parents filed a medical malpractice suit which settled for $2.8 million before trial. North Carolina, which had paid over $1.9 million of E.M.A.’s treatment through its Medicaid program, has a statute that sets aside the lesser of either the cost of medical expenses or one-third of a tort recovery to reimburse the state for its expenditures.
The Medicaid statute’s anti-lien provision, as interpreted in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 284 (2006), prevents states from recovering more money from a Medicaid recipient than has been allotted as medical expenses in a settlement or judgment. Unlike Ahlborn, the parties in this case did not specify how much of the settlement represented medical expenses, so the North Carolina statute automatically set aside one-third of the recovery.
The Court struck down the North Carolina statute, finding that it was preempted by the Medicaid anti-lien provision. Because Ahlborn “held that the Medicaid statute sets both a floor and a ceiling on a state’s potential share of a beneficiary’s tort recovery,” states may take only as much of a settlement as represents medical expenses. Where, as here, the settlement does not specifically allocate those expenses, a state may not create “an irrebuttable, one-size-fits-all statutory presumption” that an “arbitrary” percentage of the recovery may be claimed by the state because “in some circumstances . . . the statute would permit the State to take a portion of a Medicaid beneficiary’s tort judgment or settlement not ‘designated as payments for medical care.’”
The majority affirmed that states retain some discretion in structuring a system to designate unallocated medical expenses through case-by-case determinations or well-supported, reasonable “ex ante administrative criteria,” a flexibility that the SLLC brief argued was vital in administering a complex and expensive program in difficult financial times. However, the Court held that North Carolina’s particular plan failed because it conflicted with the anti-lien provision.
Christopher Egleson, Christopher Clore, Katherine Scully, and Lucy Malcolm of Akin Gump, in New York City, wrote the SLLC's brief. All of the Big Seven signed onto the SLLC's brief along with the Government Finance Officers Association and the City of New York.
The Supreme Court held that it was not necessary to obtain National Pollutant Discharge Elimination System (NPDES) permits for discharging stormwater runoff from logging roads into navigable waters under the Clean Water Act (Act) and Environmental Protection Agency (EPA) regulations. Justice Kennedy wrote for the 7-1 majority in Decker v. Northwest Environmental Defense Center.
In 2006, the Northwest Environmental Defense Center sued logging companies and Oregon officials because they did not obtain NPDES runoff permits for logging roads in the Tillamook State Forest. The Act requires permits for any stormwater discharge from a “point source” which is “associated with industrial activity.” An EPA regulation applies the Act to “discharge . . . that is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant,” but had never interpreted its regulation to include logging roads. The Ninth Circuit held that permits were required because the roads were “associated with industrial activity” under the Act and the EPA regulation.
The Court reversed the Ninth Circuit and held that the Act did not apply to the logging roads in question. The Court agreed with the EPA’s understanding that the regulation applied the Act to “industrial sites more fixed and permanent than outdoor timber-harvesting operations.” The agency’s determination that logging roads were associated with harvesting raw materials and not “industrial activity” was reasonable and therefore merited judicial deference. The Court also considered, as pointed out in the SLLC’s brief, the State of Oregon’s comprehensive regulation of both water and logging roads, which justified the EPA’s conclusion that additional federal regulation would be duplicative or counterproductive.
Roderick E. Walston, Shawn Haggerty, and Andre Monette of Best Best & Krieger LLP, in Walnut Creek, California, wrote the wrote the SLLC’s brief. The SLLC’s brief was signed onto by the National Governors Association, the National Association of Counties, the National Conference of State Legislatures, the International City/County Management Association, and the Council of State Governments.
The Supreme Court held that a “discharge of pollutants” under the Clean Water Act (CWA) does not occur when polluted water flows from an improved portion of a navigable waterway into an unimproved portion of the same waterway. Justice Ginsburg wrote the Court’s unanimous opinion in Los Angeles County Flood Control District v. Natural Resources Defense Council.
Los Angeles County Flood Control District (LACFCD) operates a municipal separate storm sewer system (MS4) that collects, transports, and discharges stormwater. MS4 operators must obtain National Pollutant Discharge Elimination System (NPDES) permits before discharging stormwater into navigable waters. Pollution testing in concrete channels in the Los Angeles and San Gabriel Rivers revealed that water quality standards were exceeded. The Ninth Circuit held that LACFCD was responsible for the polluted water that flowed out of the concrete-lined portions of the rivers because LACFCD controlled the concrete channels, regardless of the fact that thousands of other dischargers discharged into the rivers upstream of the concrete channels.
Per the CWA, the “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” In South Florida Water Management District v. Miccosukee Tribe the Supreme Court held that an “addition” of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another. In that case polluted water was removed from a canal, transported through a pump station, and deposited into a nearby reservoir. The SLLC's brief argued that the segments of the rivers above and below the channeled portions of the rivers in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred. The Supreme Court agreed that: “[i]t follows…from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a body of water, simply flows from one portion of the water body to another.”
Roderick E. Walston and Shawn Haggerty of Best Best & Krieger LLP, in Walnut Creek, California, wrote the SLLC’s brief. The SLLC’s brief was signed onto by the National Governors Association, the National Association of Counties, the National Conference of State Legislatures, the International City/County Management Association, the Council of State Governments, and the United States Conference of Mayors.