Briefs Recently Filed
In McBurney v. Young the Supreme Court will decide the constitutionality of a provision of Virginia’s Freedom of Information Act (VFOIA) which requires that only citizens of the Commonwealth have access to public records. The SLLC’s brief argues that VFOIA’s “citizen’s-only” provision violates neither the U.S. Constitution’s Privileges and Immunities Clause nor the dormant Commerce Clause. Seven states public records laws have “citizen’s-only” provisions.
Mark McBurney, a citizen of Rhode Island, requested records related to Virginia Division of Child Support Enforcement’s handling of child support cases when one spouse lives abroad. Roger Hurlbert, a citizen of California, operates a business requesting real estate tax assessment records and sought such records for parcels in Henrico County, Virginia. Both were denied access to records because they aren’t Virginia citizens.
The lower court concluded that while “fundamental rights” protected by the Privileges and Immunities Clause include the ability to practice a trade or profession and access to the courts, neither Hurlbert’s nor McBurney’s rights were unduly burdened. According to the lower court, VFOIA doesn’t discriminate against noncitizens of Virginia on the basis of interstate commerce in violation of the dormant Commerce Clause because VFOIA concerns access to Virginia records to avoid secrecy in government and is “wholly silent” on commerce and economic interests.
The SLLC’s brief argues that while state and local governments generally favor public records laws, administering them is costly and burdensome. The brief points out that the central purpose of VFOIA is to enable Virginia citizens to observe their government in operation and to hold their public officials accountable. The SLLC’s brief argues that Virginia’s “citizens-only” provision does not violate the Privileges and Immunities Clause because access to non-judicial records isn’t a fundamental right. Finally, the SLLC’s brief argues that Virginia has exercised a traditional governmental function in determining the extent to which it will make its own governmental records accessible to its citizens, so the dormant Commerce Clause doesn’t apply.
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.
In Maryland v. King the Supreme Court will decide whether the Fourth Amendment allows states to collect and analyze DNA, without a warrant, from people arrested and charged with serious crimes.
Alonzo King was arrested on first and second degree assault charges. Maryland’s DNA Collection Act allows state and local law enforcement authorities to collect DNA samples from those arrested for crimes or attempted crimes of violence and burglary or attempted burglary. A DNA sample was collected from King the day he was arrested. King’s DNA profile matched with a profile developed from a DNA sample collected in an unsolved rape case.
Maryland’s highest state court held that the state’s DNA arrest law violated King’s Fourth Amendment rights after weighing King’s “expectation of privacy to be free from warrantless searches of his biological material” and Maryland’s interest in identifying arrestees accurately and solving cold cases.
Twenty-eight states and the federal government have adopted DNA arrest laws.
The SLLC’s brief argues that DNA arrest laws are presumed constitutional and have been adopted based on sound policy considerations including the fact that they help prevent and solve crime, they balance the interests of the state and arrestees, and they save state and local governments money.
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 will decide two issues in Koontz v. St. Johns River Water Management District. First, whether the “essential nexus” and “rough proportionality” tests apply to land-use exactions involving the payment of money rather than the dedication of land. Second, whether a “taking” can occur if the government does not issue a land-use permit. The SLLC’s amicus brief argues the answer to both questions should be no.
Mr. Koontz sought a permit to develop part of his property that involved dredging wetlands. St. Johns asked Koontz to pay for off-site mitigation including replacing culverts or plugging drainage canals on other property a few miles away. Koontz refused, and St. Johns never issued him a permit. Koontz sued St. Johns for a temporary taking and was awarded almost $400,000.
In two previous cases, Nollan and Dolan, the Supreme Court held that when the government requests the dedication of land as a condition for issuing a permit there must be an “essential nexus” between the dedication of land and denying the permit and “rough proportionality” between the dedication of land and the impact of the development. The Florida Supreme Court “decline[d] to expand” Nollan and Dolan to non-dedications of land, including the requested mitigation in this case. The Florida Supreme Court also concluded that there was no “taking” because St. John never issued the permit, and Koontz was never required to perform any off-site mitigation.
The SLLC’s brief argues that Nollan and Dolan should not apply to permits conditioned on money because then arguably Nollan and Dolan could apply to public taxation programs. The SLLC’s brief also argues that Nollan and Dolan should not be applied to permit denials because doing so will discourage local government from engaging in permit negotiations.
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 issue in City of Arlington & Cable, Telecommunications, and Technology Committee v. FCC is whether courts should apply Chevron deference to review an agency’s determination of its own jurisdiction. The SLLC's amicus brief argues courts should apply no deference.
The Telecommunications Act of 1996 requires state and local governments to respond to requests to place, construct, or modify personal wireless service facilities within a “reasonable period of time.” The Federal Communications Commission (FCC) interpreted a “reasonable period of time” as being 90 or 150 days. The City of Arlington argued that the FCC lacked statutory authority to interpret this language. The FCC disagreed and claimed that its interpretation of its jurisdiction is subject to review under Chevron v. NRDC. The Fifth Circuit, relying on past circuit court precedent, applied Chevron deference to the FCC’s interpretation of its own statutory authority under the Telecommunications Act and concluded that the FCC had jurisdiction to interpret a “reasonable period of time.”
The SLLC’s brief argues, among other things, that state and local governments are often regulated by federal agencies and often regulate the same subject matter as federal agencies. As a result, allowing federal agencies to determine the scope of their own jurisdiction, with only deferential review by courts, would allow federal agencies to encroach upon the authority of state and local governments, as illustrated by this case.
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 issue in Delia v. E.M.A is whether a North Carolina statute allowing the state to recover one-third of a Medicaid recipient’s settlement from a tortfeasor is preempted by Medicaid’s anti-lien provision.
E.M.A. was injured at birth. Her parents settled a medical malpractice claim for $2.8 million that didn’t allocate separate amounts for medical expenses and other damages. North Carolina, which had paid over $1.9 million in medical expenses on E.M.A.’s behalf, sought to recover one-third of the settlement. A state statute allows North Carolina to recover the lesser of actual medical expenses or one-third of a Medicaid recipient’s total tort settlement.
Medicaid prohibits states from asserting liens against Medicaid recipients except for medical expenses recovered from tortfeasors. In 2006, in Arkansas Department of Health and Human Services v. Ahlborn, the U.S. Supreme Court struck down an Arkansas statute that allowed the state to recover all of the costs it paid on behalf of a Medicaid recipient regardless of whether that amount exceeded the medical expenses portion of a settlement. In Ahlborn, unlike this case, the parties had allocated the settlement between medical expenses and other damages. So in this case the Supreme Court must decide whether and how Ahlborn applies to unallocated settlements.
The SLLC’s brief argues that Medicaid is a huge expense for states and that Medicaid grants states substantial discretion in how they pursue recovery from tortfeasors. The brief points out North Carolina’s statute encourages parties to allocate settlements and avoids states having to participate in burdensome settlement discussions or post-settlement allocation hearings. The brief also argues that allowing Medicaid recipients to keep two-thirds of their tort settlement is reasonable and fair.
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 question in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center is who should regulate stormwater runoff from logging roads: state and local governments or the federal government. The issue the SLLC focused on in its amicus brief is whether the lower court should have deferred to the Environmental Protection Agency’s (EPA) longstanding position that channeled stormwater runoff from logging roads doesn’t require an National Pollutant Discharge Elimination System (NPDES) permit.
The Clean Water Act (CWA) requires NPDES permits for the “discharge of any pollutant” from a “point source,” which includes ditches and channels, into “the navigable waters of the United States.” Since 1973, one year after the CWA was passed, the EPA has issued regulations exempting silvicultural (logging) activity from NPDES permitting requirements. Yet, the Ninth Circuit held that state forest agencies and a county were required to obtain NPDES permits for stormwater runoff flowing from logging roads into ditches, culverts, and channels. The Ninth Circuit reasoned that Congress didn’t exclude silvicultural activity from the definition of a “point source” and that the EPA could not exclude it through regulations.
The SLLC’s brief argues that the Ninth Circuit erred in concluding that an NPDES permit is required for channeled stormwater runoff from logging roads. First, the SLLC argues that under the CWA silvicultural stormwater runoff isn’t a “point source” discharge requiring an NPDES permit. Second, the SLLC argues that assuming the CWA is ambiguous concerning whether silvicultural stormwater runoff is a “point source,” the Supreme Court should defer to the EPA’s longstanding position that it isn’t because EPA’s rule limits, rather than expands, federal authority to regulate land and water use, which state and local governments have traditionally regulated. Finally, the SLLC’s brief points out that obtaining NPDES permits for every ditch and channel on every logging road in the United States would be extremely costly and burdensome for state and local governments that are already regulating such stormwater runoff.
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.