Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other. On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court. In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts. Continue reading
Merit Construction Alliance v. City of Quincy, No. 13-2189 (July 16, 2014): The court concluded that the district court: (1) properly determined that ERISA preempts a City ordinance mandating a specific apprentice-training program; and (2) erred by awarding attorney’s fees under ERISA’s fee-shifting statute.
Batchelor v. Rose Tree Media Sch. Dist., No. 13-2192 (July 17, 2014): The court found that retaliation claims related to enforcement under the Indviduals with Disabilities in Education Act must be exhausted before a court may assert subject-matter jurisdiction. Continue reading
Supreme Court cases are usually known for what they hold. Harris v. Quinn will forever be known for what it did not hold. The Court did not overrule Abood v. Detroit Board of Education, a 35-year old precedent that is a cornerstone of public sector collective bargaining. But it certainly foreshadowed its demise.
In Harris v. Quinn the Supreme Court held 5-4 that the First Amendment prohibits the collection of an agency fee from home health care providers who do not wish to join or support a union. Continue reading
As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term: Burwell v. Hobby Lobby. The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.
Though not obvious, this case may have a significant impact on land use regulation. For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion. Continue reading
E.M. v. New York City Dept. of Ed., No. 11-1427 (July 11, 2014) (in IDEA case, concluding that district court improperly concluded that IEP was adequate by relying on retrospective evidence extrinsic to the IEP).
In a unanimous opinion in McCullen v. Coakley, the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment.
Massachusetts adopted this statute because protesters routinely violated a previous statute. Petitioners were “sidewalk counselors” who claimed the buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.”
The State and Local Legal Center’s (SLLC) amicus brief points out that cities frequently use buffer zones in numerous contexts. For example, prior to McCullen, lower courts upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners.
McCullen begs an obvious question: will any buffer zone statutes and ordinances survive constitutional scrutiny now? Continue reading
Litigation offers attorneys many opportunities to choose how they will behave and what they will say. The best course is to take the high road at every opportunity. Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress. A small meanness may be reciprocated, then followed by an escalation and tit for tat. Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case.
All attorneys are held to a high standard by the law and the rules of professionalism and civility. Continue reading
Hescott v. City of Saginaw, No. 13-2103 (July 2, 2014) (ruling that district court erred denying attorney’s fees to Hescotts in their successful 1983 action claiming that the City had unconstitutionally seized their personal effects by demolishing their property).
Scherr v. City of Chicago, No. 13-1992 (July 2, 2014) (affirming that 1983 suit against officer based on alleged Fourth-Amendment violation was properly dismissed). Continue reading
This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert’s sign ordinance against a First-Amendment challenge. The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions.
The Court could use this case to clarify when a local ordinance is “content-based” or “content-neutral,” a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town’s ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs: Continue reading
Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established): Continue reading
Bible Baptist Church Welcomes You! 1 Block –>
A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause.
Tearpock-Martini’s lawsuit had a problem though.
Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law.
A local government can create a 35-foot buffer zone to restrict speech on a public street only if it has first made a serious effort to address the issue in other ways.
That’s the lesson of McCullen v. Coakley, the Supreme-Court decision today that strikes down a Massachusetts statute that makes it a crime to knowingly stand on a public way or sidewalk within 35 feet of a location where abortions are performed.
Although the Court found that the law is content-neutral—and therefore not subject to strict scrutiny—the Court ruled that the Commonwealth had “too readily foregone options” that would not substantially burden speech.
What are those options? Continue reading
Supreme Court watchers love technology cases. Technology is for the young, so the cliché goes, and the youngest Justices are middle age. Court watchers speculate, will the Justices even understand the technology they are ruling? Justice Robert’s 28-page opinion in Riley v. California, discussing encryption, apps, and cloud computing, reads like a primer on how cell phones work. The Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone. Continue reading
Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. They would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism. In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975).
Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure. Continue reading
Had Utility Air Regulatory Group v. EPA gone the other way, it would be a big deal for cities. But it didn’t. Cities own many small stationary sources that emit greenhouse gases and will benefit from not having to obtain permits for them.
The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.). In 2007 Continue reading
- Thayer v. City of Worcester, No. 13-2355 (June 19, 2014) (affirming denial of preliminary injunction against enforcement of city ordinances prohibiting coercive or risky behavior by panhandlers).
Second Circuit Continue reading
The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.
The good: The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor.
The bad: The Court read “official job duties” narrowly to exclude speech about information merely learned at the job.
The ugly: The Court doesn’t decide the obvious next question: is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment? Continue reading
What if you load up the car with personal belongings for a camping trip? Or drive an RV to go on vacation?
In the Ninth Circuit’s view, a City of Los Angeles code provision designed to outlaw sleeping in a vehicle on City streets and parking lots may or may not criminalize all these activities and could lead to other selective enforcement—particularly against the homeless and poor. The court therefore ruled that the provision is unconstitutionally vague. The decision is Desertrain v. City of Los Angeles, No. 11-56957 (June 19, 2014).
Los Angeles Municipal Code Section 85.02 outlaws Continue reading
A variety of federal and state laws require that notice of an appeal be given or that a copy of the appellate brief be served on the U.S. Attorney General or the applicable state attorney general. Failure to comply may delay the appeal or result in other sanctions. For example, California provisions declare: “No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the brief or petition on the Attorney General and district attorney is filed with the court.” Cal. Bus. and Prof. Code §§17209, 17536.5; accord, id. §16750.2.
Federal law also requires notice and grants a right of intervention to the United States Attorney General or the California Attorney General, respectively, when the constitutionality of federal or state statutes affecting the public interest is challenged in federal litigation to which the federal or state government or their agencies or employees are not already parties. Continue reading
This morning, the Supreme Court decided Lane v. Franks, a case that this blog previously covered here. The Court ruled unanimously that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.
- Rosano v. Township of Teaneck, No. 13-1263 (June 10, 2014) (in action by current and former police officers against Township alleging violation of Fair Labor Standards Act because it did not pay proper overtime and provide compensation for attending daily roll calls and putting on and taking off uniforms, affirming grant of summary judgment for Township).
- Garofalo v. Village of Hazel Crest, No. 12-668 (June 12, 2014) (in action by former police sergeants, both white, alleging that the Village discriminated against them based on race by promoting a black officer to police chief, affirming summary judgment for Village).
Judges are substantially governed by rules—local rules, rules of evidence, state or federal rules for trial courts or appellate courts. Rules do not normally determine the merits, although rules provide the structure or framework within which the merits can be considered fairly to both sides. Not surprisingly, judges typically know the applicable rules quite well. The judge may have drafted the local rule specifically to address an issue arising with some frequency in that judge’s courtroom. Or the judge may have been reversed for failure to enforce the rule.
Judges expect attorneys to know the rules. Attorneys who practice in multiple courts may need to learn and use many sets of rules. Just do it. The alternative is to be sorry. Courts are not gentle with attorneys who fail to read and follow the rules, as reflected in the following, drawn from a wide variety of available examples. In some instances, the court decision effectively sets up a malpractice action against the careless attorney. Continue reading
If preemption is your passion, this Supreme Court term has been a disappointment. CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one.
In CTS Corp. v. Waldburger, the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose. Continue reading
A primary brief author may work over a number of days on the brief, followed by review and alteration by other attorneys and the client. Sections of the brief may be emailed to others for comment. It can be hard to remember which case and statutory cites have been checked thoroughly. Even aside from cites that may be added by others, an attorney may run across a case supporting point X while focused on point Y. If the attorney adds the case to the draft brief in progress and returns to point Y, there may be nothing to distinguish that citation from the cites that have been checked.
Those who use Google Scholar and other imperfect sources of law need to track the cases located through that research to check them on Westlaw or Lexis because reconsideration may have caused alteration of the relevant paragraph. Subsequent history may turn a good cite into a bad one. Annotations may reveal a good or bad construction of a statute not shown by Internet sources for the statutes. Although the issue is especially acute with Google Scholar, the problem exists with every cite.
One solution to this recurring problem is Continue reading
Imagine yourself going through a security screening. Annoying, right? Now imagine yourself getting paid to go through a security screening. Better, right? But what if you are a city with a security screening process that as a result of a court decision must now pay employees to go through security screenings? Sometime in the next year, the Supreme Court will affirm or reverse the Ninth Circuit’s decision to this effect in Integrity Staffing Solutions v. Busk.
In this case the Supreme Court will decide whether hourly employees must be paid for time spent in security screenings under the Fair Labor Standards Act (FLSA). Continue reading
- Cady v. Walsh, No. 13-2040 (June 4, 2014) (finding that the court lacks subject-matter jurisdiction over interlocutory appeal in qualified-immunity case).
- Kagan v. City of New Orleans, No. 13-30801 (June 2, 2014) (affirming summary judgment for City in First-Amendment challenge brought by tour guides who objected to City licensing requirement).
- Morgan v. Swanson, No. 13-40433 (June 3, 2014) (affirming grant of qualified immunity to school principal who prevented parent from distributing religious materials to other adults at school party; this substitutes for earlier opinion).
In a unanimous decision published yesterday, the California Supreme Court concluded that the evidence generated by an automated traffic enforcement system (ATES) was adequately authenticated by the testimony of a city officer, and that the ATES evidence did not constitute hearsay.
The defendant in People v. Goldsmith was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood. The evidence presented against her included several photographs and a 12-second video, all of which were generated by an ATES. Only one witness testified at the defendant’s trial, Continue reading
Taxpayers X and Y live in the same state and have the same income but Taxpayer X earns all of her income in-state while Taxpayer Y earns all of her income out-of-state. Taxpayer Y pays more in taxes because she pays income taxes out-of-state and pays a county income tax in her home state. Unfair? (Not necessarily. After all, Taxpayer Y receives government services in the county where she resides.) Unconstitutional? The Supreme Court will decide.
The Supreme Court hasn’t decided a state and local government tax case since Armour v. Indianapolis, during the Court’s 2011 term. In Comptroller v. Wynne it will decide an issue of first impression: whether a state must offer a credit to its residents for all income taxes paid to another jurisdiction. A decision against Maryland’s Comptroller would limit state and local taxing authority nationwide. Continue reading
- Long boring briefs
- Incoherent, unfocused, disorganized briefs
- String cites and other poor use of authority
- Briefs with abusive language
- Briefs that ignore the standard of review or attempt to relitigate the facts
- Briefs that ignore jurisdiction
- The last minute emergency motion—usually filed at 4:00 p.m. on a Friday before a holiday
- Robertson v. Lucas, No. 12-3877 (May 28, 2014) (in case arising out of corrupted drug-trade investigation, affirming award of qualified immunity on malicious prosecution and false arrest claims, and affirming dismissal of Monell claim against Richland County and City of Cleveland).
String cites are almost universally condemned. Judges at all levels criticize string cites. Minority and dissenting judges criticize majorities that use string cites, and vice versa but to a lesser extent. Attorneys criticize the string cites in their opponents’ briefs. Law reviews insult string cites routinely.
What distinguishes a string cite from a list of cases that support the stated proposition? Continue reading
In Plumhoff v. Rickard the Sixth Circuit did not so much as discuss the qualified immunity standard when denying qualified immunity. In Wood v. Moss the Ninth Circuit viewed the qualified immunity question at a high level of generality causing dissenting Judge O’Scannlain to (accurately) warn: “Our court’s track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.”
- Gericke v. Begin, No. 12-2326 (May 23, 2014) (affirming denial of qualified immunity for police officers on First-Amendment retaliatory prosecution claim where plaintiff was arrested after she attempted to film a traffic stop).
- Walton v. Dawson, No. 12-4000 (May 20, 2014) (affirming in part and reversing in part denial of qualified immunity in failure-to-train claims against officers arising out of jail-cell attack that occurred after officers did not lock cell doors).
Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position. I’ve got some cases on my side and you’ve got some cases on your side. One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position. In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake. “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted).
What are some ways to address the cases that hurt? Continue reading
- Sherman v. Town of Chester, No. 13-1503 (May 16, 2014) (ruling that takings claim against the Town was ripe because seeking a final decision from the Town would be futile and because Town had removed case to federal court).
- Morales v. City of New York, No. 13-2126 (May 16, 2014) (affirming dismissal of complaint against City alleging malicious prosecution, abuse of process, deprivation of right to fair trial, and deprivation of constitutional rights on account of race and color).
- Disabled in Action v. Bd. of Elections in the City of New York, No. 12-4412 (May 14, 2014) (affirming that City Board of Elections violated Section 504 of the Rehabilitation Act and Title II of the ADA by failing to provide people with mobility or vision disabilities with meaningful access to voting program).
The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP. Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court.
Do’s and Don’ts for an Effective Appeal
1. Know what relief you want (and why).
2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.
3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, Continue reading
That’s especially true when it comes to my writing.
So I thought I’d share five writing tips that I wish I had known earlier.
The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels.
Tip # 1: Place important and new information at a sentence’s ending.
This one is counterintuitive: a sentence’s most valuable real estate is not where it starts but where it finishes. At the sentence’s ending, a reader naturally stops — it’s sometimes called a “stress position.” These natural pauses give a writer an opportunity: Continue reading
After filing an opening brief, you have a month or more to see what your opponent has to say. The day finally arrives, and you snatch up your opponent’s brief and read it only to discover that your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time. How do you respond in your reply brief? Continue reading
- Jones v. City of Boston, No. 12-2280 (May 7, 2014) (in suit challenging police department’s drug-testing program as causing disparate impact based on race, reversing denial of summary judgment for plaintiffs on whether they had proved a prima facie case of disparate impact under Title VII).
- City of Pontiac Retired Employees Assoc. v. Schimmel, No. 12-2087 (May 5, 2014) (vacating order denying preliminary injunction and remanding on questions related to whether emergency manager could reduce and eliminate health-care benefits for retired City employees).
If you spend your time following baseball, local governments, and appellate litigation (as I do), the Ninth Circuit case of City of San Jose v. Office of the Commissioner of Baseball, No. 14-15139, is one to watch.
The issues are simple: the City of San Jose would like the Oakland A’s to relocate there, but MLB has refused to permit it.
According to the City, another team, the San Francisco Giants, “owns” the exclusive rights to San Jose. The City explained that MLB teams have an “exclusive territorial rights agreement,”one that the City claims “constitutes a blatant market allocation scheme that is illegal under the American antitrust laws in all other professional sports.”
Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought.
There may be a State and a circumstance in which every one of these possible answers is the right answer. Continue reading
Justice Kennedy is better known for his rhetorical flair than his practical guidance. But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer.
Town of Greece resolves two issues: whether prayers must be nonsectarian and whether prayers before city council meetings are coercive.
The Court concludes that sectarian prayers that overtly refer to a specific faith are okay—to a point. Sectarian prayers can go too far Continue reading
In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, ruling that the Town’s prayer practice is not an unconstitutional establishment of religion. This post tracks some commentary on the case:
The stark difference between the majority opinion in the Allegheny County case and the Court’s new opinion in the Town of Greece case illustrated the progress made by Justice Kennedy toward the Court’s full embrace — although for differing reasons among five Justices who determined the outcome – of the “coercion” test in determining whether a government practice amounted to an “establishment of religion” in violation of the First Amendment.
In addition to addressing local-government prayer this morning, the Supreme Court also decided to hear and answer another question impacting local governments: when a city denies a request to place a cell tower, how formally must it act?
The Court granted cert in T-Mobile South, LLC v. City of Roswell, No. 13-975, which specifically asks what a local government must do to satisfy the Communications Act’s “in writing” requirement at 47 U.S.C. 332(c)(7)(B)(iii):
Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record
The Supreme Court has released its decision in Town of Greece v. Galloway, concluding that the Town’s prayer practice has a “permissible ceremonial purpose” and is “not an unconstitutional establishment of religion.”
Writing for the Court, Justice Kennedy ruled that the Town’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.”
Some highlights from his opinion: Continue reading
- Bellone v. Southwick-Tolland Reg. Sch. Dist., No. 13-1341 (May 2, 2014) (affirming grant of summary judgment for school district in case brought by former employee alleging violations of Family and Medical Leave Act).
- Betts v. Shearman, No. 13-619 (May, 2, 2014) (affirming dismissal of complaint alleging false arrest, false imprisonment, abuse of process, malicious prosecution, and denial of right to fair trial).
Given the Supreme Court’s prominent role in deciding important issues of the day, it is easy to get caught up in the latest juicy Court mishap. Justice Scalia erroneously depicted precedent in his dissent in EPA v. EME Homer City Generation, which had to be corrected. But don’t let that be the reason you read this blog post. This case is important for local governments.
The Clean Air Act’s Good Neighbor Provision prohibits upwind states from emitting air pollution in amounts that will contribute significantly to downwind states failing to attain air quality standards. In EPA v. EME Homer City Generation the Supreme Court resolved two issues related to the Good Neighbor Provision. Justice Ginsburg wrote the 6-2 opinion.
The Court first considered how responsibility for air pollution should be allocated. Continue reading
Decisions across the U.S. identify, as one example of “bad appellate advocacy,” presenting too many issues on appeal. The Seventh Circuit applied those words to a brief that presented “12 issues for review—many with sub-parts, for a total of 21 principal contentions. Posing so many issues ensures that each is superficially argued.” Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 911 (7th Cir. 1996). The court in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004), found much to criticize, finding itself “compelled to comment on the state of this appeal.” The court found itself Continue reading
In Prado Navarette v. California an anonymous 911 caller reported that a vehicle had run her off the road. The Court held 5-4 that a police stop complied with the Fourth Amendment because, under the totality of the circumstances, the officers had reasonable suspicion that the driver was intoxicated. When police stopped the Navarette brothers they smelled marijuana. A search of the vehicle revealed 30 pounds of marijuana.
The Court’s rationale, in an opinion written by Justice Thomas, is as follows. The tip of dangerous driving was sufficiently reliable because Continue reading
- Green Mountain Realty Corp. v. Leonard, No. 13-2163 (Apr. 23, 2014) (finding that district court improperly granted summary judgment to Town on cell phone provider’s claim that Town “prohibited” it from providing service under 47 U.S.C. 332(c)(7) of the Communications Act).
- Hallsey v. Pheiffer, No. 13-1549 (Apr. 24, 2014) (reversing district court’s summary judgment for officers on fabrication, malicious prosecution, and coercion claims, in case arising out of suit brought by individual wrongly imprisoned for 22 years).
In Schuette v. Coalition to Defend Affirmative Action the Supreme Court held 6-2 that voters may by ballot prohibit affirmative action in public universities admission decisions. While this case was limited to the use of race in public university admission decisions, Michigan’s constitutional amendment also prohibits the use of racial-preference in state and local government employment and contracting. Presumably, these provisions are also constitutional. As NCSL’s Affirmative Action: State Action chart describes, a number of states prohibit the use of affirmative action in local government employment and contracting.
Think of legal research as a way to get from here to there and to convince others to go with you. Even judges, perhaps especially judges, are uncomfortable going, in the words of Star Trek “where no man has gone before.” Legal research provides the stepping stones of authority showing that others have gone from here to there before and that “there” is the right place to go.
Here are some of the stepping stones:
- Direct authority—a clear and definitive statement in the applicable constitution or statute or by a controlling court or other body (use may require briefing to establish the body’s status as controlling when preemption, choice of law, and similar issues are presented; if there is no statute, then a regulation; if the highest court has not spoken, then an intermediate court).
In Heien v. North Carolina a police officer pulled over a car because he thought that North Carolina law required that motor vehicles have two working brake lights. It turns out the officer was wrong. The North Carolina Court of Appeals concluded that state law requires motor vehicles to only have one working brake light.
When the driver and the passenger offered different stories as to where they were going, the officer asked to search the vehicle. Consent was granted and cocaine was found.
The U.S. Supreme Court will decide whether a traffic stop is permissible under the Fourth Amendment when it is based on an officer’s misunderstanding of the law. The North Carolina Supreme Court reasoned Continue reading
As it happens, I’m not finding any published decisions involving local governments from last week. This is a change from recent weeks – see here and here. Readers: let me know if I’ve missed anything.
[Update: The Sixth Circuit did decide Bradley v. Reno, No. 13-3983 (Apr. 18, 2014). There, a state court found that an officer had probable cause to arrest Bradley, but a jury subsequently acquitted him of the charge. When Bradley later brought a 1983 action against the officer, the question was whether the probable-cause determination precluded Bradley from litigating the probable-cause issue under the doctrine of issue preclusion. The Sixth Circuit ruled that, per Ohio law, Bradley could litigate the question again -- because Bradley had no opportunity to appeal the probable-cause ruling.]
At least in the initial drafts, efforts to keep a document concise may stifle the flow of written words. If this is true, then let the words come freely and deal with wordiness later. Once the desired content is captured, a writer can turn to making the document shorter and otherwise more pleasing.
There are a variety of ways to shorten the draft to meet page limits:
- Check the margins to be sure the lines extend to the full permitted width and length. Extend the block quote margins.
- Create Continue reading
The Eleventh Circuit ruled that the termination did not trigger First-Amendment scrutiny:
No one disputes that Lane was acting pursuant to his official duties as CITY’S Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment. That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment. Continue reading
- Thomas v. Cumberland County, No. 12-3959 (Apr. 11, 2014) (in suit alleging that the County failed to properly train officers to prevent attack by other inmates, vacating the district court’s order of summary judgment for the County because a reasonable jury could find that the County acted with deliberate indifference).
- Rouster v. Saginaw County, No. 13-1673 (Apr. 9, 2014) (affirming district court decision that medical staff was not deliberately indifferent to jailed individual’s medical needs).
Seventh Circuit Continue reading
- The Bronx Household of Faith v. Bd. of Educ. of the City of New York, No. 12-2730 (Apr. 3, 2014) (reversing district court’s decision and ruling that school may refuse to allow its facilities to be used for religious worship). See this post from Evan Seeman and Dwight Merriam at the RLUIPA Defense blog.
- T.M. v. Cornwall Central School District, No. 12-4301 (Apr. 2, 2014) (finding that district court erred as a matter of law in concluding that the school district was not required under the Individuals with Disabilties Education Act to offer student a mainstream extended school year program simply because it does not offer such a program.).
- EEOC v. Baltimore County, No. 13-1106 (Mar. 31, 2014) (finding that county retirement plan unlawfully Continue reading
By Lisa Soronen [We are thrilled to have a guest post from Lisa Soronen, executive director of the State and Local Legal Center.]
Last week, the Supreme Court struck down aggregate limits on individual contributions to candidates for federal office, political parties, and political action committees.
McCutcheon v. FEC will likely impact the dozen or so states that place aggregate limits on individual campaign contributions to candidates for state office. A cursory glance at state campaign finance laws regulating local elections indicates that states generally have not adopted aggregate caps meaning this decision will not affect contributions to local elections.
Federal law allows Continue reading