With respect to appellate litigation, the IMLA Legal Advocacy Program serves IMLA members and their governmental clients as an evaluation center, as an information outlet and in some cases as an amicus in litigation considered to have a significant impact on a substantial number of local governments on a national basis. IMLA is the service organization of primary resort for its members in all cases in which a party to a case before the United States Supreme Court is represented by an IMLA member. The issues in these lawsuits range from the constitutional allocation of power between state and local governments and the federal government to challenges to the regulatory authority of governments based on civil and individual rights. Take a look at our amicus activity for 2012 so far.

If you want to contact IMLA about possible participation in your case, contact Tagg Hutchinson at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or 202-466-5424 x7112.

Filed September 13, 2012 (petition-stage brief)

L.A. Cnty. Flood Control Dist. v. NRDC 

READ BRIEF HERE

Pro Bono Author: Sarah Shalf, Emory Law School Supreme Court Advocacy Program

To control flooding and prevent potential property damage, The City of Los Angeles, like many cities across the country, created a network Municipal Separate Storm Sewer System (MS4s).  These channelized improvements to surface water flow are necessary to prevent catastrophic losses in the event of a natural disaster.  The Ninth Circuit recently held that these man-made improvements constitute a “point source” under the Clean Water Act, even when they do not divert or alter the water source in any way, but merely channelize it for flood prevention.  This redefinition of what constitutes a “point source” conflicts with prior Supreme Court case law, and opens up municipal governments who operate MS4 waterways to strict liability for any discharge that passes through their gates, regardless of whether the discharge occurred upstream and outside of their control.  The ruling places cities in the untenable position of having to assume liability for all pollutants flowing through the MS4s they maintain, or forego developing flood control systems that protect the lives and property of their citizens.

Filed May 16, 2012 (petition-stage brief)

Redevelopment Authority of Montgomery v. R&J Holding  READ BRIEF HERE
Pro Bono Author: Robert J. Tribeck

There is a long drawn-out history to this case, which we invite you read about on our blog here . In short, this a case about the intersection of a number of land use doctrines, including the Williamson doctrine, issue/claim preclusion, and the England reservation. For those familiar with land use law, it goes without saying that these are some of the more controversial issues in land use (for plaintiffs). However, at the end of the day, there needs to be finality to litigation. This case has already taken 15 years and cost the Authority countless dollars. Allowing two bites at the apple will only cost the Authority more time and money. The Supreme Court itself states in cases like these “we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal.” San Remo.

Filed February 10, 2012 (petition-stage brief)
City of Hugo v. Buchanan  READ BRIEF HERE
Pro Bono Authors: Janet Spugnardi & Andrew Messer

While this case deals with a number of issues like water rights, the issue on appeal is one of standing. The City of Hugo (Oklahoma) entered into an agreement with the City of Irving (Texas) for the sale of water. This agreement was prohibited under Oklahoma law and Hugo was denied a permit to effectuate the agreement by the state water board. Hugo sued, and the lower court ruled that the City of Hugo did not have standing to sue its parent-state (political subdivision standing doctrine). IMLA, Texas Municipal League and Texas Municipal Attorneys Association jointly filed a brief in this case.

Filed February 08, 2012 (petition-stage brief)
Comite de Jornaleros v. City of Redondo Beach  READ BRIEF HERE
Pro Bono Author: Scott Howard

The City's roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City's solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we've read. It's worth reading.

Filed February 06, 2012 (merits-stage brief)

Armour v. City of Indianapolis  READ BRIEF HERE
Pro Bono Authors: Lowell Schiller, Quin Sorenson & John Meiser

A group of property owners brought an equal protection claim against the City of Indianapolis due to the City's decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.

IMLA has submitted a brief in this case to emphasize that the City's actions meet the rational basis standard. City's have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief. We invite you to read this excellent brief.

Filed January 2012 (merits-stage brief)

Reichle v. Howards  READ BRIEF HERE

IMLA signed on with the State and Local Legal Center on a case with the following question: Can a person who is arrested upon probable cause is barred from bringing a First Amendment retaliatory arrest claim against the arresting officer? In this case, Steven Howards was visiting an outdoor shopping mall when he found out that Vice President Dick Cheney would be making an appearance. Undercover Secret Service was on the scene, and one member of the team overheard Howards speaking into his cell phone, "I'm going to ask him how many kids he's killed today." Mr. Howards did approach the Vice President, touched him on the shoulder, and told him his policies in Iraq were disgusting.

Howards walked away, but he was stopped by Agent Reichle. Agent Reichle asked Howards if he had touched the Vice President. Howards responded untruthfully that he hadn't and tried to walk away. Howards was arrested for harassment, held for a few hours, and released.

Howards brought an action against the Secret Service agents alleging that he was arrested without probable cause in violation of the Fourth Amendment and in retaliation for the exercise of his First Amendment rights. The Court of Appeals for the Tenth Circuit ruled that the agents were entitled to qualified immunity on the Fourth Amendment claim, as Howards had lied (which in this case, triggered a federal statute). However, the Tenth Circuit held that Howards could pursue a First Amendment retaliatory arrest claim despite the fact that agents had probable cause to arrest Howard.

Filed January 03, 2012 (petition-stage brief)

Arlington (TX) v. Frame  READ BRIEF HERE
Pro Bono Author: David Canupp

The cert petition deals with the following question: Does Title II of the ADA mandate that sidewalks constitute a "service, program or activity" within the meaning of Title II? This case presents an important issue for municipalities if a plaintiff comes across a cracked sidewalk or broken curb, they do not have to allege (under the 5th Circuit's decision) that they were denied access to any particular program or service of the city. It is IMLA's position that any city has a duty to provide an accessible route to its programs, but the route itself is not a program. To require a locality to fix each and every crack would require a municipality to devote a unbalanced percentage limited fiscal resources to fixing sidewalks.

Filed December 30, 2011 (4th Circuit Court of Appeals)

Bowden v. Town of Cary  READ BRIEF HERE
Pro Bono Authors: John Baker , Patrick Flanagan , Dana Maine , Randall Morrison

Sign cases are almost by default controversial. There are numerous aspects of the First Amendment that come in to play, but yet, it is important that localities retain the authority to regulate on a content-neutral basis. This is such a case.

Filed December 28, 2011 (merits-stage brief)

Magner v. Gallagher  READ BRIEF HERE

Pro Bono Authors: Kevin Decker & Amie Penny

Like many cities, St. Paul has a property maintenance code which establishes minimum standards for all structures, including provision on light, ventilation, heating, sanitation, fire safety, etc. In 2002, St. Paul's Department of Neighborhood Housing and Property Improvement (DNHPI) increased the level of code enforcement and targeted rental properties. DNHPI employed a number of strategies, including issuing orders to abate conditions, condemnations, vacant-building registrations, fees for excessive consumption of municipal services, and if necessary, court action.

Plaintiffs in this case were landlords, with portfolios ranging from one to over forty properties. These landlords received the code enforcement citations. Plaintiffs claimed that they suffered increased maintenance costs and fees because of code enforcement. The 8th Circuit Court of Appeals held that these landlords could bring a disparate impact claim under the FHA, because the increased cost of repaid tended to increase rents, thereby disproportionately reducing the housing options for people of color. Plaintiffs were not required to show that the policy or practice was formulated with discriminatory intent; they simply had to show that "a facially neutral policy had a significant adverse impact on members of a protected minority group."

Filed November 21, 2011 (merits-stage brief)

Filarsky v. Delia  READ BRIEF HERE

Delia brought a Section 1983 action against, the City of Rialto, a number of its employees, and importantly in this case, a private attorney hired to conduct an interview with Delia. Delia alleged a violation of his Fourth Amendment rights, and the 9th Circuit granted qualified immunity to all the defendants, EXCEPT for the private attorney, Filarsky. Because Filarsky is not a government employee, the 9th Circuit ruled that there was no special reason to extend governmental immunity to private parties similarly situated. IMLA participated in this case because local government entities rely on outside counsel regularly in performing day-to-day activities and for roles that are very specific in nature. Private lawyers who are acting on the government's behalf should not be denied the protections while they are working side-by-side with government lawyer, simply because they are not employed by the local entity. A ruling against Filarsky would certainly have the consequence of affecting a government entity's ability to retain high-quality counsel and would also likely increase municipal costs in a time when localities can least afford additional financial burdens. IMLA signed onto an amicus brief submitted by the National School Boards Association.

Filed September 16, 2011 (merits-stage brief)

Rehberg v. Paulk  READ BRIEF HERE

Pro Bono Author: Lawrence Rosenthal

Rehberg sent a number of anonymous faxes to a local hospital, criticizing the management of the hospital. Paulk was a public investigator in the District Attorneys office who started investigating Rehberg as a "favor" to the hospital. Eventually, Rehberg was indicted three times by a grand jury, where Paulk was the only or one of two witnesses in front of the grand jury. Each time, Rehberg successfully challenged the grand jury indictment and the indictments were dismissed. Rehberg brought a Section 1983 action against, among others, Paulk for malicious investigation/prosecution and claiming that his Fourth Amendment rights were violated because he had been arrested under the "malicious" indictments. The Question Presented in front of the Supreme Court is an interesting one: "Whether a law enforcement official sued for an allegedly unreasonable search and seizure resulting from testimony in front of a grand jury that allegedly failed to provide probable cause should be denied testimonial immunity on the theory that the official is properly analogized to a complaining witness who could be sued at common law for the tort of malicious prosecution."

Filed August 25, 2011 (petition-stage brief)

City of San Leandro v. Int'l Church of the Foursquare Gospel   READ BRIEF HERE

Pro Bono Authors: Howard D. Cohen & Michael Sullivan

This is a RLUIPA (Religious Land Use and Institutionalized Persons Act) case. The petition asks the Supreme Court to resolve: 1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a “substantial burden” under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006); 2. Whether case-by-case analysis of a land use application constitutes an “individualized assessment” under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006); 3. Whether neutral, generally applicable planning principles may be a “compelling interest” of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(1)(A) (2006).

Filed August 25, 2011 (merits-stage brief)

Florence v. Brd. of Chosen Freeholders of County of Burlington  READ BRIEF HERE

IMLA signed on to an amicus effort headed by the City and County of San Francisco. In short, the issue is whether or not a visual strip search for an arrestee before being placed with the general jail population (regardless of pretrial, conviction, offense type) is constitutional under the Fourth Amendment. In 1979, the Supreme Court decided Bell v. Wolfish, 441 U.S. 520 (1979), which upheld a jail policy requiring a visual strip search of every inmate (pretrial and convicted) after every contact visit from a person outside the jail. Since Bell, some circuits now hold that arrestees charged with minor offenses may not be strip searched unless the prison has a reasonable suspicion that the arrestee is concealing a weapon or other contraband. IMLA believes that to ensure the safety of jail personnel, visitors, other inmates, local jail official need to be able to visually strip search arrestees before they enter the general jail population.

Filed August 23, 2011 (Texas Supreme Court)

Dallas v. Stewart  READ BRIEF HERE

Pro Bono Author: Marianne Landers Banks, Assistant City Attorney, Springfield, MO

This is an interesting case. Steward bought a house and abandoned it in 1991. For over 10 years, the house was a common stop for code enforcement officials, for vagrants, and for complaints by neighbors. One neighbor even testified that an old tree had fallen from Stewart's lot onto her causing $8,000 worth of damage and threatened to do $30,000 more. In September 2001, ten years after Stewart abandoned the house, the Dallas Urban Rehabilitation Standards Board, a thirty member administrative body, met to decide whether Stewart's house was a nuisance that should be abated. Eventually, the Board voted in favor of demolishing the home. Shortly after, a code inspector when to Stewart's home and found that she had not repaired the property. The City obtained a demolition warrant. Stewart appealed the Board's decision to district court, but the district court upheld the Board's decision. The property was demolished. Shortly after, Stewart brought an action, in part, including a due process and unconstitutional takings claim. The court ruled in favor of Stewart, saying that despite all the notice and opportunity to repair her home, she was entitled to a de novo review of her claims in court, rather than a determination by the administrative board and a affirmance under a substantial evidence standard by the reviewing court.

Filed March 31, 2011 (merits-stage brief)

Nevada Ethics Commission v. Carrigan  READ BRIEF HERE

Pro Bono Authors: David Barber, Ashley Martinez, Elisabeth Kaylor, Molly Shortall (Arlington City Attorney's Office)

Carrigan was an elected councilmember. In 2005, the city held public hearings regarding a proposed large-scale casino/hotel development. One of the consultants for the casino was also Carrigan's former campaign manager. Carrigan solicited the City Attorney on how to handle the situation. The City Attorney recommended that Carrigan did not need to abstain from voting, but he did need to disclose his prior relationship with the consultant, which he did. The Nevada Ethics Commission censured Carrigan for not recusing himself, basing its decision on a Nevada law that required elected officials to abstain from voting in situations with the following relationships: 1) another member of the official's household; 2) someone related by blood or marriage; 3) an employer; 4) engaged in a business relationship; and 5) a relationship 'substantially similar' to the first four relationships. It was this "catch-all" category that was used to reprimand Carrigan. Carrigan brought a challenge under the First Amendment, claiming that the ethics law violated his protected political speech, was overbroad, vague and constituted a prior restraint. IMLA participated in favor of Carrgian in this case because we felt that the law was too vague, and confuses officials (and the local government attorneys who advise them) as to when to abstain from voting.

Filed February 7, 2011 (merits-stage brief)

Fox v. Vice  READ BRIEF HERE

Pro Bono Author: Pierre Bergeron

The Town of Vinton Louisiana was part of Section 1983 action in suit arising out of a heated election for Chief of Police. A federal court ultimately ruled that all of the plaintiff's federal claims were frivolous but there were other state law claims deemed not frivolous. The Town then sought and won attorneys fees on the frivolous claims. Mr. Fox appealed, claiming that the Town was not a "prevailing defendant" because there were still state law claims yet to be resolved. IMLA joined this case arguing that the fees here were properly awarded -- both because the inclusion of even one non-frivolous claim does not insulate a plaintiff from attorney fee liability for frivolous claims, and because the lower court had properly attributed the fees to the frivolous claims. IMLA joined this case because if Mr. Fox prevailed in this case, a plaintiff need only include one non-frivolous claim and can include numerous frivolous claims and still emerge unscathed from attorney fee liability. Cities fiscal resources are limited, and while cities accept the responsibility of defendant non-frivolous claims, taxpayers should not have to pay for cities to defend clearly frivolous claims.

Older Legal Advocacy Amicus Activity

District Attorney's Office for the Third Judicial District v. Osborne (DNA Testing/Due Process/Federalism)
Salazar v. Buono (First Amendment)

Ricci v. DeStefano (Title VII & Equal Protection Clause)

Pleasant Grove v. Summum (Speech)

Albuquerque Common Partnership v. City of Albuquerque (Property - Takings Litigation)

Permanent Mission of India to the United Nations v. City of New York

Naser Jewelers v. City of Concord (First Amendment - Billboards)