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Recent Court Rulings

South Dakota v. Wayfair

In South Dakota v. Wayfair the Supreme Court ruled that states and local governments can require vendors with no physical presence in the state to collect sales tax. According to the Court, in a 5-4 decision, “economic and virtual contacts” are enough to create a “substantial nexus” with the state allowing the state to require collection.  

In 1967 in National Bellas Hess v. Department of Revenue of Illinois, the Supreme Court held that per its Commerce Clause jurisprudence, states and local governments cannot require businesses to collect sales tax unless the business has a physical presence in the state.

Twenty-five years later in Quill v. North Dakota (1992), the Supreme Court reaffirmed the physical presence requirement but admitted that “contemporary Commerce Clause jurisprudence might not dictate the same result” as the Court had reached in Bellas Hess.

Customers buying from remote sellers still owe sale tax but they rarely pay it when the remote seller does not collect it. Congress had the authority to overrule Bellas Hess and Quill but never did so.

In March 2015 Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” Justice Kennedy criticized Quill in Direct Marketing Association v. Brohl for many of the same reasons the State and Local Legal Center (SLLC) stated in its amicus brief in that case. Specifically, internet sales have risen astronomically since 1992 and states and local governments are unable to collect most taxes due on sales from out-of-state vendors.

Following the 2015 Kennedy opinion a number of state legislatures passed laws requiring remote vendors to collect sales tax in order to challenge Quill. South Dakota’s law was the first ready for Supreme Court review. It requires out-of-state retailers to collect sales tax if they annually conduct $100,000 worth of business or 200 separate transactions in South Dakota.

In an opinion written by Justice Kennedy the Court offered three reasons for why it was abandoning the physical presence rule. “First, the physical presence rule is not a necessary interpretation of the requirement that a state tax must be ‘applied to an activity with a substantial nexus with the taxing State.’ Second, Quill creates rather than resolves market distortions. And third, Quill imposes the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow.”

While the dissenting Justices, in an opinion written by Chief Justice Roberts, would have left it to Congress to act, Justice Kennedy opined the Court should be “vigilant” in correcting its error. “Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response.”   

To require a vendor to collect sales tax the vendor must still have a “substantial nexus” with the state. The Court found a “substantial nexus” in this case based on the “economic and virtual contacts” Wayfair has with the state. A business could not do $100,000 worth of business or 200 separate transactions in South Dakota “unless the seller availed itself of the substantial privilege of carrying on business in South Dakota.”

Finally, the Court acknowledged that questions remain whether “some other principle in the Court’s Commerce Clause doctrine might invalidate the Act.” But the Court cited to three features of South Dakota’s tax system that “appear designed to prevent discrimination against or undue burdens upon interstate commerce. First, the Act applies a safe harbor to those who transact only limited business in South Dakota. Second, the Act ensures that no obligation to remit the sales tax may be applied retroactively. Third, South Dakota is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement.”

Tillman Breckenridge, Bailey Glasser, and Patricia Roberts, William & Mary Law School Appellate and Supreme Court Clinic, wrote the SLLC amicus 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, the Government Finance Officers Association, National Public Labor Relations Association, the International Public Management Association for Human Resources, National State Treasurers Association, National School Boards Association, AASA, the School Superintendents Association, the National Association of Elementary School Principals, and the Association of School Business Officials International.

Lozman v. City of Riviera Beach

In an 8-1 decision in Lozman v. Riviera Beach the Supreme Court held that a citizen who was arrested for making comments at a city council meeting (possibly because the City had an official policy of retaliating against him) was not barred from bringing a First Amendment retaliatory arrest claim against the City even if it had probable cause to arrest him.

The State and Local Legal Center (SLLC) filed an amicus brief arguing that an arrestee could not bring a First Amendment retaliatory arrest lawsuit if probable cause existed. The Court declined to decide whether as a general rule probable cause bars First Amendment retaliation cases against police officers.    

Fane Lozman was an “outspoken critic” of the City of Riviera Beach’s proposed plan to redevelop the city-owned marina using eminent domain. He also sued the City claiming it violated open meetings law. He alleged that the City Council held a closed-door meeting in which it devised an official plan to intimidate him in retaliation for his lawsuit. Five months after the closed-door meeting, a councilmember had Lozman arrested during the public comment period for discussing issues unrelated to the City and refusing to leave the podium. Watch Fane Lozman get arrested here.

Lozman conceded that the City had probable cause to arrest him. But he claimed the City should be liable for violating the First Amendment because its strategy to intimidate him to stop speaking was a “but for” cause of his arrest. In contrast, the City argued that Lozman could not sue it for retaliatory arrest under any circumstances if probable cause existed to arrest him.

In an opinion written by Justice Kennedy, the Court declined to decide whether to extend either the “but for” cause rule proposed by Lozman or the absolute bar to retaliatory arrest claims proposed by the City to the “mine run” of First Amendment retaliatory arrest claims. Instead, the Court held that because of the unique facts of this case Lozman “need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City.”

These unique facts include that Lozman claims he was the victim of an official policy motivated by retaliation. “An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer.” Second, causation problems don’t exist in this case where “the official policy is retaliation for prior, protected speech bearing little relation to the criminal offense for which the arrest is made.” Finally, the Court noted that because Lozman’s speech concerned the right to petition the government it was “high in the hierarchy of First Amendment values.”

The SLLC amicus brief argued that if probable cause is present and officers can still be sued states and local governments will have more difficulty maintaining order and safety at local-government meetings, public protests and demonstrations, and political rallies. Additionally, the brief pointed to the role of state constitutions, state courts, and internal disciplinary measures within state and local police departments to protect free speech and offer “meaningful remedies for true victims of retaliation.”

Sean Gallagher, Bennett Cohen, and Britton St. Onge of Polsinelli wrote the SLLC amicus brief which the following organizations joined:  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.

Minnesota Voter Alliance v. Mansky

A closer look at the Supreme Court opinion in Minnesota Voter Alliance v. Mansky reveals that the case may not be as bad as it seems for the thirty some states which prohibit campaign-related accessories or apparel at polling place.

In a 7-2 decision the Supreme Court struck down a Minnesota law which prohibits voters from wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day. According to the Court banning all political speech is too broad. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Minnesota.

Andrew Cilek was temporarily prevented from voting for wearing two items: a T-shirt with the words “Don’t Tread on Me” and the Tea Party Patriots logo and a “Please I. D. Me” button. He argued before the Supreme Court that Minnesota’s ban on political speech at the polling place violates the First Amendment because it is overly broad.

The Supreme Court in an opinion written by Chief Justice Roberts concluded the statute violates the First Amendment. The Court opined that states may ban some campaign-related clothing and accessories from the polling place but “must draw a reasonable line.” In short, states must be able to articulate “some sensible basis for distinguishing what may come in from what must stay out.” “[T]he unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail.”

More specifically, the statute doesn’t define “political.” Minnesota states that apparel on “any subject on which a political candidate or party has taken a stance” is disallowed. To this the Court responded: “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable.” Likewise, the state interpreted the statute to ban apparel “promoting a group with recognizable political views.” The Court pointed out this could include associations, educational institutions, businesses, and religious organizations who have stated an opinion on issues confronting voters in a given election.

The Court concluded by noting that all is not lost for states that ban campaign-related apparel at polling places. Without passing on their constitutionality, the Court cited to statutes from California and Texas as more “lucid” than Minnesota’s statute.

Instead of declaring Minnesota’s political apparel ban unconstitutional on its face Justices Sotomayor and Breyer would have allowed Minnesota state courts “a reasonable opportunity to pass upon” and construe the statute. In their opinions the dissenting Justices mentioned that polling places “remain vulnerable to interpersonal conflicts and partisan efforts to influence voters,” a point discussed at length in the SLLC amicus brief. These Justices cited to examples listed in the SLLC brief of disruptions at polling places which illustrate why states have adopted apparel bans.  

Charles Rothfeld, Andrew Pincus, Michael Kimberly, and Paul Hughes of Mayer Brown and Eugene Fidell of the Yale Supreme Court Clinic wrote the SLLC amicus brief which the following organizations joined:  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 Randolph Institute 

In Husted v. A. Philip Randolph Institute the Supreme Court held that Ohio’s processes of removing people from the voter rolls does not violate federal law. If a person doesn’t vote for two years Ohio sends them a confirmation notice. If they don’t respond to the notice and don’t vote in the next four years, Ohio removes them from the voter rolls.

The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Ohio. Twelve other states maintain their voter rolls using a similar process.

The National Voter Registration Act (NVRA) allows states to remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles. But the “Failure-to-Vote Clause” says a state program “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.”

Two advocacy groups and an Ohio resident claim Ohio’s process violate the NVRA’s Failure-to-Vote Clause because “the failure to vote plays a prominent part in the Ohio removal scheme.” They argue failure to vote is used as a trigger for sending the confirmation notice and as a requirement for removal.  

The Supreme Court in a 5-4 opinion written by Justice Alito concluded the Ohio process doesn’t violate the NVRA. First, it is undisputed the Ohio process follows the NVRA “to the letter.” Second, Justice Alito pointed to other language in the NVRA stating that registrants may not be removed “solely by reason of a failure to vote.” According to the Court, the NVRA “simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by [the NVRA], Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.”

The challengers also argued that because so many people discard the confirmation notice the failure to send it back is “worthless” as evidence someone has moved and is ineligible to vote. The Supreme Court rejected the notion it should second-guess the Ohio Legislature’s “considered judgment” regarding the “probative value” of a registrant’s failure to respond to the confirmation notice.

The Court again relied on respecting the judgment of the Ohio Legislature in rejecting the challengers’ argument the “Ohio’s procedure is illegal because the State sends out notices without having any ‘reliable indicator’ that the addressee has moved.” According to the Court, “the Ohio Legislature apparently thought that nonvoting for two years was sufficiently correlated with a change of residence to justify sending a [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 notes 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 DavisReed 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.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

In a 7-2 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission the Supreme Court reversed a ruling against the owner of a cake shop who refused to create a wedding cake for a same-sex couple because of his religious beliefs. The Court concluded the cake maker was entitled to but did not experience a “neutral decisionmaker who [gave] full and fair consideration to his religious objection.” The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Colorado.

Charlie Craig and Dave Mullins filed a complaint against Masterpiece Cakeshop claiming it violated Colorado's public accommodations law, which prohibits discrimination in public accommodations on the basis of sexual orientation, when it refused to create a wedding cake for them. The cake shop owner Jack Phillips explained:  “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”

Before the Colorado Civil Rights Commission and the Colorado Court of Appeals, Masterpiece argued that being required to create cakes for same-sex weddings violates Phillips’ First Amendment free speech and free exercise rights. Phillips lost in both venues.

The Supreme Court, in an opinion written by Justice Kennedy, ruled in favor of Masterpiece, concluding that the Colorado Civil Rights Commission acted with hostility toward religion “inconsistent with the First Amendment’s guarantee that our laws be applied . . . neutral[ly] toward religion.”

Specifically, a number of commissioners made anti-religion remarks at hearings including that faith is “one of the most despicable pieces of rhetoric that people can use.” Also, on at least three other occasions the commission allowed bakers to refuse to create cakes conveying disapproval of same-sex marriage, along with religious text because the cake makers deemed these messages offensive. According to the Court:  “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”

The Supreme Court didn’t rule that Phillips had a First Amendment free speech or free exercise of religion right to not make a wedding cake for a same-sex couple. The Court also didn’t address the argument made by the SLLC (and others) that the Court should not create an exception to Colorado’s public accommodations law for wedding businesses. According to the National Council of State Legislatures, 21 other states have public accommodations laws that prohibit discrimination based on sexual orientation. The SLLC brief points out over 100 local governments in 38 states have adopted ordinances protecting citizens from sexual-orientation discrimination in public accommodations.

The Court also didn’t offer any insight as to how it would have decided this case had the Commissioners not demonstrated a bias against religion or how similar, future cases should be decided. Justice Kennedy concluded by simply stating the following:  “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Justices Ginsburg and Sotomayor dissented. Justice Ginsburg began her opinion by noting she agreed with much of the Court’s opinion. She went on to say that the different outcomes for the other three cake makers “do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.”

The National League of Cities, the International City/County Management Association, and the International Municipal Lawyers Association joined the SLLC brief which was written by Bruce La Pierre, Washington University School of Law Appellate Clinic and Brian Walsh, Bryan Cave. 

Murphy v. NCAA 

In a 6-3 decision in Murphy v. National Collegiate Athletic Association the Supreme Court declared the federal Professional and Amateur Sports Protection Act (PASPA) unconstitutional. PASPA, adopted in 1992, prohibits states from authorizing sports gambling. The State and Local Legal Center (SLLC) filed an amicus brief asking the Court to rule PASPA violates the Constitution’s anticommandeering doctrine.  

As a result of this decision state legislatures may repeal state laws banning sports betting and/or pass laws allowing sports betting. State legislatures may also enable local governments to authorize sports 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 violated 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.”

The New Jersey governor asked the Third Circuit and the Supreme Court to declare PASPA unconstitutional per the anticommandeering doctrine. 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 Supreme Court disagreed.   

In an opinion written by Justice Alito, the Court first concluded that “authorizing” per PASPA includes state laws permitting sports gambling and states completely or partially repealing old laws banning sports gambling. The Court rejected the Third Circuit’s narrower definition of authorizing. “The Third Circuit could not say which, if any, partial repeals are allowed. [The NCAA] and the United States tell us that the PASPA ban on state authorization allows complete repeals, but beyond that they identify no clear line. It is improbable that Congress meant to enact such a nebulous regime.”   

Regarding the statute’s constitutionality, Justice Alito admitted that the anticommandeering doctrine “sounds arcane.” But it is simply the notion that Congress lacks the power to “issue orders directly to the States.” By telling states they could not authorize sports gambling (either outright or by repealing bans on the books) PASPA violates the anticommandeering rule. “[PASPA] unequivocally dictates what a state legislature may and may not do. . . . [S]tate legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”

PASPA contains provisions prohibiting states from operating a sports betting lottery, private actors from operating sports betting schemes pursuant to state law, and restrictions on both state and private actors regarding advertising sports gambling. The Court struck down the entire law concluding none of the provisions are severable—meaning Congress would not have likely enacted them alone.

Richard A. SimpsonTara Ward, and Emily HartWiley 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.

District of Columbia v. Wesby

In District of Columbia v. Wesby the majority of the Supreme Court ruled D.C. police officers had probable cause to arrest individuals for holding a “raucous, late-night party in a house they did not have permission to enter.” All nine of the Justices ruled in favor of granting qualified immunity to the police officers. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting D.C.  

Police were called to a home in D.C. around 1AM based on complaints of loud music and illegal activity. The house was dirty with no furniture downstairs except a few metal chairs. In the living room the officers found “a makeshift strip club”; they found “more debauchery upstairs.” While many partygoers said they were there for a bachelor party no one could identify the bachelor.

Two of the women working the party said that “Peaches” was renting the house and had given them permission to be there. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she ultimately 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 charged with, but never prosecuted for, disorderly conduct.

The partygoers sued D.C. for false arrest under the Fourth Amendment. The D.C. Circuit concluded there was no probable cause to arrest them. Peaches invited them—so the officers had no reason to believe the partygoers “knew or should have known” their “entry was unwanted.”

The Supreme Court, in an opinion written by Justice Thomas, looked at the totality of the circumstances and concluded police officers made an “entirely reasonable inference” that the partygoers “were knowingly taking advantage of a vacant house as a venue for their late-night party.” The totality of the circumstances included:  the condition of the house (filthy and empty); the partygoers’ conduct (makeshift strip club); their reaction to police presence (scattering, hiding in closets); their answers to questions (vague and implausible); and Peaches’ invitation (from a confirmed liar).

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 D.C. Circuit denied the police officers qualified immunity in this case. According to Justice Thomas by treated the invitation as “uncontroverted evidence” of lawful entry the D.C. Circuit incorrectly “assumed that the officers could not infer the partygoers’ intent from other circumstances” and incorrectly “assumed that the officers could not disbelieve the partygoers’ story.”

In the same vein, the SLLC amicus brief argued the police officers should have been able to doubt the partygoers claim they had permission to be at the house because circumstantial evidence indicated otherwise.

 In concluding the officers should have been granted qualified immunity (even assuming they lacked probable cause) the Court stated that “existing precedent would have given the officers reason to doubt that they had to accept the partygoers’ assertion of a bona fide belief. The D.C. Court of Appeals has held that officers are not required to take a suspect’s innocent explanation at face value.” 

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

Artis v. District of Columbia

The Supreme Court held 5-4 in Artis v. District of Columbia that “tolled” under 28 U.S.C 1367(d) means suspended or that the clock is stopped. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of a different definition of “tolled.” Justice Ginsburg cited to the SLLC brief once in her majority opinion. Justice Gorsuch cited to it or discussed it four times in his dissenting opinion.   

A year after the fact, Stephanie Artis sued the District of Columbia in federal district court bringing a number of federal and state law claims related to her termination as a health inspector. It took the federal court over two and a half years to rule on her claims. It dismissed her sole federal claim and declined to exercise jurisdiction over her remaining 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 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 court dismissed her case.

The question in this case was whether Artis’s lawsuit in state court was timely. The answer depends on how “tolled” is defined.  

Under the stop-the-clock approach the state statutes 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 statutes 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 was time barred because she waited longer the 30 days to refile.

The Supreme Court adopted the stop-the-clock reading. Among other reasons, it note that Black’s Law Dictionary defines “toll” as “to suspend or stop temporarily,” legislatures know how to write statutes adopting a grace-period, and D.C. “has not identified any federal statute in which a grace-period meaning has been ascribed to the word ‘tolled’ or any word similarly rooted.”

Two of Justice Gorsuch’s four citations to the SLLC amicus brief highlight its argument that the Court’s approach “will require state courts to entertain state law claims that state law deems untimely not only by weeks or months but by many years, as 24 States, the National Conference of State Legislatures, and the Council of State Governments warn us.”

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.