Supreme Court webinar

Employment Cases--July 15

Review--July 22

Police Case--July 29

More information here

Patel interview

Listen to SLLC Executive Director discuss Los Angeles v. Patel on Privacy Piracy with Mari Frank

About the SLLC

Everything you would like to know in a one page flyer

Why Hire A Supreme Court Specialist?

Has your certiorari petition been granted? Thinking about filing a cert petition? Consider working with a Supreme Court specialist. Read more here.   

National Law Journal Article about the SLLC

Center Advocates for State and Local Governments discusses the SLLC’s mission, history, current amicus activity

SLLC February 2015 Newsletter

Find out what's new at the SLLC here

Sign up to recieve the SLLC's newsletter here

Recent Court Rulings

Kingsley v. Hendrickson

In Kingsley v. Hendrickson the Supreme Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for a subjective standard. As a result of this ruling it will be easier for pretrial detainees to bring successful excessive force claims against corrections officers.   

Pretrial detainee Michael Kingsley and the officers in this case agree that Kingsley refused to remove a piece of paper covering a light fixture and was forcibly removed from his jail cell so that officers could remove it. While Kingsley claims, and the officers disagree, that Kingsley resisted their efforts to remove his handcuffs and in the process the officers slammed his head against the concrete bunk, the parties agree that Kingsley was tasered. 

State and local government officials can be sued for money damages for constitutional violations. At least until this case, the constitutional standard for excessive force were clear for arrestees and post-conviction detainees. For post-conviction detainees, officers may not act with a subjective “deliberate indifference,” while for arrestees, officers may not act “objectively unreasonable.”

The Court held that the objective standard should apply to excessive force claims brought by pretrial detainees, relying partially on precedent. In a previous case involving prison conditions affecting pretrial detainees, Bell v. Wolfish (1979), the Court used an objective standard to evaluate a prison’s practice of double bunking. And the Court pointed out that the objective standard applies to those who, like Kingsley, have been accused but not convicted of a crime, but who unlike Kingsley are free on bail.  

While the Court claims that the objective standard is “workable,” the SLLC’s amicus brief argued that it is not and that the same subjective standard should apply to both pretrial detainees and post-conviction detainees. Jails generally commingle these two categories of inmates, and the extremely high turnover rate of jails leaves officers little time to become familiar with each individual. Pretrial detainees are often more dangerous than the post-conviction detainees housed in jails because post-conviction detainees in jails generally are serving time for relatively minor offenses whereas pretrial detainees are awaiting trial for all manner of offenses, including serious and violent crimes. 

Ironically, surprisingly, and even worse for state and local government, the Court seems to acknowledge the problem of different force standards applying to pre-trial detainees and post-conviction detainees and suggests that the objective standard may apply to excessive force claims brought by post-conviction detainees.

We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.  

State and local governments should expect to see a case seeking to establish that the objective standard applies to post-conviction detainee excessive force claims shortly.

Aaron Streett, Joshua Davis, J. Mark Little, and Shane Pennington, Baker Botts wrote the SLLC brief which was joined by 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 joined the brief.  

City of Los Angeles v. Patel 

In City of Los Angeles v. Patel the Supreme Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available to police without at least a subpoena violates the Fourth Amendment. In his dissenting opinion, Justice Scalia cites to the State and Local Legal Center’s (SLLC) amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes:  Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia. 

A Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without a warrant or a subpoena. The purpose of the ordinance is to deter crime—drug dealing, prostitution, and human trafficking—on the theory that criminals will not commit crimes in hotels if they have to provide identifying information. 

The Court concluded that the searches permitted by the ordinance in this case are “administrative”—that is, they are done to ensure compliance with recordkeeping requirements. While administrative searches do not require warrants, they do require “precompliance review before a neutral decisionmaker.” Absent this, “the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.”

According to the Court, all police officers need to do to make sure that a search of a hotel registry is constitutional is issue a subpoena. If a hotel operator thinks the search is “motivated by illicit purposes” the operator can move to quash the subpoena. If the officer reasonably suspects that the operator may tamper with the registry before a judge can rule on the motion to quash, the officer “may guard the registry.”

Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, would have ruled that hotels are a closely regulated business, in part because, as the SLLC’s amicus brief points out, hotel registry ordinances and statutes are so ubiquitous. Subpoenas are not require to inspect the records of closely regulated businesses.   

The SLLC’s amicus brief pointed out that mobile home parks, second-hand dealers like pawnshops and junkyards, scrap metal dealers, and massage parlors are subject to registration and inspection laws and ordinances. While Supreme Court precedent indicates that junkyards are closely regulated businesses, whether police inspection of other registries will require a subpoena is possible following this decision.  

Finally, the Court held in this opinion that facial challenges—to a statute itself rather than a particular application of a statute—aren’t “categorically barred or especially disfavored.” The SLLC argued that Fourth Amendment facial challenges don’t make sense because whether a search violates the Fourth Amendment depends on whether it is reasonable, which is necessarily a fact-based determination. The Court disagreed pointing out that it has on numerous occasions declared statutes facially invalid under the Fourth Amendment.

Tom McCarthy, William Consovoy, and Michael Connolly of Consovoy McCarthy and the George Mason University School of Law Supreme Court Clinic wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association.  

Reed v. Town of Gilbert, Arizona 

In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide.

Gilbert’s Sign Code treats temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs.

Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest.

While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”

Gilbert’s Sign Code failed strict scrutiny because its two asserted compelling interests—preserving aesthetic and traffic safety—were “hopelessly underinclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.

Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court has defined as content-based in this opinion.  Communities will need to change these ordinances.  Justice Alito, in a concurring opinion, offers a list of rules that he and two other Justices believes would not be content-based. Justice Kagan, in a separate concurring opinion joined by two other Justices, is less optimist about the impact of this ruling on local government: 

As the years go by, courts will discover that thousands of towns have ordinances [that contain subject matter exemptions like historical markers] many of them “entirely reasonable.” And as the challenges to them mount, courts will have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of Sign Review.) And courts will strike down those democratically enacted local laws even though no one—certainly not the majority—has ever explained why the vindication of First Amendment values requires that result. 

Bill Brinton, Rogers Towers wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, the American Planning Association, and Scenic America.

EEOC v. Abercrombie & Fitch Stores

In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation.

Abercrombie & Fitch’s “Look Policy,” prohibits employees from wearing “caps” because they are too informal for the store’s desired image. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. The assistant store manager who interviewed Elauf told the district manager she believed Elauf wore the headscarf for religious reasons. The district manager decided Elauf should not be hired as headwear worn for any reason violates Abercrombie’s “Look Policy.”

The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Elauf’s religious beliefs. The Tenth Circuit held in favor of Abercrombie, finding that an applicant/employee must inform the employer about the need for a religious accommodation.

The Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a motivating factor in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motiving factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.

According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion, stated that the Court should have decided this question--in the negative. 

Amanda Kellar and Chuck Thompson, International Municipal Lawyers Association, wrote the SLLC’s brief which was joined by the National Conference of State Legislatures, the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association,  the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.  

Comptroller v. Wynne

In a 5-4 decision in Comptroller v. Wynne the Court held that Maryland’s failure to offer residents a full credit against income taxes paid to other states is unconstitutional. The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) filed an amicus brief in support of Maryland. 

Maryland taxes residents’ income earned in- and out-of-state. If Maryland residents pay income tax to another state for income earned there, Maryland allows them a credit against Maryland’s “state” tax but not its “county” tax. Maryland also taxes nonresident income earned in the state. Nonresidents pay Maryland “state” tax and a “special nonresident tax” equivalent to Maryland’s lowest “county” tax.

The Wynne’s of Howard County, Maryland, received S-corporation income that was earned and taxed in numerous other states. They challenged Maryland’s failure to allow them to claim a credit against their Maryland county taxes as violating the dormant Commerce Clause, which prevents states from discriminating against or excessively burdening interstate commerce.

The problem with Maryland’s tax scheme the Court reasoned was that it had the potential to result in double taxation of income earned out-of-state. More specifically, it failed the “internal consistency” test. This test “looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate.” If all states had a tax scheme like Maryland’s “county” and “special nonresident tax” that taxed income residents earned in-state, income residents earned in other jurisdictions, and non-residents income earned in-state, residents who earn income out-of-state would be taxed by their state of residence and the state where they earned the income.  

Dissenting Justices Ginsburg, Scalia, and Kagan were sympathetic to the argument the SLLC/IMLA made that residents should not be able to avoid paying taxes for the services they use locally like education, infrastructure, and public safety even though they may also owe taxes to other states. 

The Court said Maryland could fix its tax scheme by granting a full credit for income taxes paid to other states.  According to Mark Walsh in School Law Blog, Maryland estimates that as a result of this decision it will owe $200 million in refunds and will collect $42 million less annually in county taxes.  At least two other states, Wisconsin and North Carolina, also don’t offer credits for all income taxes paid to other states.  Also, numerous local governments require non-residents to pay income taxes. Resident states may now be required to offer tax credits for non-resident city income taxes paid to other states, if they don’t already.  

Paul Clement and Zack Tripp of Bancroft wrote the SLLC/IMLA brief.  The National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the Government Finance Officers Association joined the brief.

City & County of San Francisco v. Sheehan 

In a 6-2 decision the Court declined to decide one of the most important questions this term for state and local government: whether Title II of the Americans with Disabilities Act (ADA) requires police officers to accommodate suspects who are armed, violent, and mentally ill when bringing them into custody. But the Court held that the officers in City and County of San Francisco v. Sheehan were entitled to qualified immunity.

When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness to take her to a hospital for psychiatric care, she threatened to kill them with a knife she held, so they retreated. Before backup arrived, the officers decided to reenter her room to prevent her from gathering more weapons or escaping. Upon reentry, Sheehan still had the knife in her hand and yelled for them to leave. One officer pepper sprayed Sheehan but she refused to drop the knife. The officers then shot her multiple times but she survived.

Title II of the ADA provides that qualified individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated. The Ninth Circuit held that the ADA applies to arrests and that a jury should decide whether the police officers should have accommodated Sheehan by, for example, respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation.

Based on its arguments to the Ninth Circuit and its certiorari petition, the Court expected San Francisco to argue that Title II doesn’t apply to arrests at least until the scene is secure. Instead, San Francisco argued that it does but Sheehan wasn’t a qualified individual with a disability because she was a “direct threat” to the officers. Because the parties did not have a clear dispute over whether Title II of the ADA applies to arrests the Court dismissed this issue as improvidently granted.

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 Court reversed the Ninth Circuit’s decision denying the officers qualified immunity because they reentered her room rather than attempted to accommodate her disability. According to the Court, even assuming that the Ninth Circuit’s reading of precedent is true and “any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry,” no precedent clearly establishes there was no objective need for immediate entry here where Sheehan could have gathered more weapons or escaped. 

Stay tuned; the Court is likely to again hear a case involving the question of whether and when the ADA applies to arrests. 

The SLLC filed an amicus brief in this case pointing out that no conclusive evidence indicates police officers taking specialized approaches to responding to incidents involving the mentally ill reduce the rate or severity of injuries to mentally ill suspects. The SLLC also argued the officers in this case should be granted qualified immunity.   

Orry Korb, Danny Chou, Greta Hanson, and Melissa Kiniyalocts, County of Santa Clara, California wrote the SLLC's amicus brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, and the United States Conference of Mayors.

Perez v. Mortgage Bankers Association

In 2006 the Department of Labor (DOL) stated in an opinion letter that mortgage loan officers were eligible for overtime but then changed its mind in 2010 in an “Administrator’s Interpretation.”

In Perez v. Mortgage Bankers Association the Supreme Court held unanimously that federal agencies do not have to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before changing an interpretive rule, like the 2006 opinion letter in this case.  The Court overturned a nearly 20 year-old precedent from the D.C. Circuit, Paralyzed Veterans of America v. D.C. Arena, which the SLLC argued in an amicus brief that the Court should affirm.  Paralyzed Veterans held that an agency must use APA notice-and-comment when significantly altering an interpretive rule that interprets a legislative rule. 

This case will make it more difficult for state and local government to influence federal agency policy expressed in interpretive rules—specifically when agencies want to change them.  

The APA requires that “legislative rules” be issued through a notice-and-comment process.  But the APA states that notice-and-comment does not apply to “interpretive rules.”  According to the Court, “[t]his exemption of interpretive rules from the notice-and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans.”  The Court rejected Mortgage Bankers Association’s (MBA) argument that when an agency alters an interpretive rule it is effectively amending the underlying legislative rule.  The Court reasoned that interpreting a legislative rule does not amount to “amending” it.  And if it did, why shouldn’t notice-and-comment apply to an agency’s first set of interpretive rules?     

In arguing in favor of the Paralyzed Veterans doctrine, the SLLC’s brief discussed a number of examples where federal agencies have changed positions in interpretive rules and state and local governments would have liked to have provided comments.  The Court was not persuaded by MBA’s similar argument that the Paralyzed Veterans doctrine “reinforces the APA’s goal of ‘procedural fairness’ by preventing agencies from unilaterally and unexpectedly altering their interpretation of important regulations.”

The SLLC’s amicus brief also argued that Paralyzed Veterans provides a needed check on agency authority because recently the Court has deferred to interpretative rules, which aren’t supposed to have the force of law.  Justice Scalia agreed in a concurring opinion but suggested, as did the SLLC, that the Court should abandon deference to interpretative rules.

James HoAshley Johnson, Kirsten Galler, and Lauren Blas of Gibson, Dunn & Crutcher wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers AssociationGovernment Finance Officers Association, National School Boards Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.

Alabama Department of Revenue v. CSX Transportation

In Alabama Department of Revenue v. CSX Transportation the Supreme Court held 7-2 that railroads can be compared to their competitors when determining whether a tax is discriminatory in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act).  Different taxes paid by railroads and their competitors must be compared with determining whether a tax railroads pay is discriminatory.  The State and Local Legal Center (SLLC) filed an amicus brief in this case disagreeing with the Court’s first holding and agreeing with its second holding.   

The 4-R Act prohibits state and local governments from imposing taxes that discriminate against rail carriers (railroads).  Railroads in Alabama pay a four percent sales tax on diesel fuel as do other commercial and industrial purchasers.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  Water carriers pay no sales or excise tax on diesel fuel. 

CSX sued Alabama alleging that it violated the 4-R Act by requiring railroads to pay a sales tax on diesel fuel and exempting its competitors.  Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax.  The lower court ruled in favor CSX comparing railroads to their competitors only and refusing to consider the excise tax paid by trucks.     

According to the Court, the comparison class depends on the theory of discrimination alleged.  Here, CSX argued that a tax disadvantaged it compared to its competitors so competitors are the comparison class.  But the comparison class also must be “similar situated” to the railroad.  Competitors could be a “similarly situated” class “since discrimination in favor of that class most obviously frustrates the purpose of the 4-R Act,” including restoring financial stability to railroads and fostering competition between railroads and other modes of transportation.  The Court also concluded “[t]here is simply no discrimination when there are roughly comparable taxes.”  So the lower court must compare the sales tax railroads pay and the excise tax trucks pay even if comparing different taxes is difficult.  Finally, the Court instructed the lower court to examine the justifications Alabama offered for why water carriers don’t pay any tax on diesel fuel when determining if railroads have been discriminated against.

The SLLC brief argued that given state’s traditional power to tax the Court should interpret 4-R narrowly by comparing railroads to all commercial and industrial taxpayers, ignoring the labels of sales and excise tax and comparing total taxes paid, and taking into account relevant differences between railroads and their competitors.

Forty-two states exempt trucks from sales tax on diesel fuel.  While a ruling that the proper comparison class in this case is all commercial and industrial taxpayers would have been even better, the Court’s ruling that lower courts must look at total taxes paid, and justifications for why particular competitors don’t pay particular taxes, will mean that 4-R Act discrimination cases may be less likely to succeed.  Some local governments in Alabama add additional sales tax to diesel fuel which CSX has also challenged.   

All of the Big Seven joined the SLLC brief along with SLLC associate members the International City/County Management Association and the Government Finance Officers Association.  Sarah Shalf of the Emory Law School Supreme Court Advocacy Project wrote the SLLC brief. 

Direct Marketing Association v. Brohl 

There is no way to know for sure why Justice Kennedy wrote a concurring opinion in Direct Marketing Association v. Brohl stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”  But even if you don’t read the SLLC amicus brief’s criticism of Quill and merely scan its table of authorities, you will notice that two of the three non-case related citations in Justice Kennedy’s opinion come from the SLLC’s brief.

In Quill Corp. v. North Dakota, decided in 1992, the Court held that states cannot require retailers with no in-state physical presence to collect use tax.  To improve tax collection, in 2010 the Colorado legislature began requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue.  The Direct Marketing Association sued Colorado in federal court claiming that the notice and reporting requirements are unconstitutional under Quill

The Court held unanimously that the Tax Injunction Act (TIA) does not bar a federal court from deciding this case.  The TIA states that federal courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law” where a remedy is available in state court.  The TIA was modelled on the Anti-Injunction Act, which concerns federal taxes.  According to the Court, “the Federal Tax Code has long treated information gathering as a phase of tax administration that occurs before assessment, levy, or collection.”  And, while DMA’s lawsuit sought to “limit, restrict, or hold back” tax collection in Colorado, it did not “restrain” tax collection in the narrow sense— by stopping it.

The SLLC amicus brief discusses the devastating impact Quill has had on state and local governments in light of the rise of internet purchases, Congress’s failure to pass the Marketplace Fairness Act, and states’ need to improve use tax collection through statutes like Colorado’s.  According to NCSL, at least three other states (Oklahoma, South Dakota, and Vermont) have enacted reporting requirements on remote sellers.

Interestingly, while DMA won before the Supreme Court, regardless, its challenge to the constitutionality of Colorado’s notice and reporting requirements may ultimately be decided in state court.  The Court noted that a “comity” argument may still be available to Colorado.  Per the comity doctrine, federal courts refrain from deciding cases that would interfere with the “fiscal operations of state governments.” 

Ron Parsons of Johnson, Heidepriem & Bolleg & Parsons in Sioux Falls, South Dakota, wrote the SLLC’s brief which was joined by all of the Big Seven and the Government Finance Officers Association.  

North Carolina State Board of Dental Examiners v. FTC

In North Carolina State Board of Dental Examiners v. FTC the Court held 6-3 that if the majority of state board members are active market participants, antitrust immunity applies only if the state actively supervises the board.  The SLLC's amicus brief argued that active supervision was unnecessary.      

The North Carolina State Board of Dental Examiners is a state agency principally charged with licensing dentists.  Six of its eight members must be actively practicing, licensed dentists.  After the Board issued cease-and-desist letters to non-dentist teeth whitening service providers, the Federal Trade Commission (FTC) charged it with violating federal antitrust law.

In Parker v. Brown the Court held that states receive state-action immunity from federal antitrust law when acting in their sovereign capacity.  In this case the Court held that non-sovereign entities controlled by active market participants receive state-action immunity only if the challenged restraint is clearly articulated in state policy and the policy is actively supervised by the state.  Here the parties assumed the clear articulation requirement was met and agreed the Board wasn’t actively supervised by the state.  So the Court denied the Board state-action immunity.    

Justice Kennedy, writing for the majority, reasoned that without active supervision, boards and commissions made up of a majority of market participants may act in their own interest rather than the public interest.  “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult even for market participants to discern.”

In a dissenting opinion Justice Alito, joined by Justices Scalia and Thomas, concluded that under Parker state-action immunity applies to state agencies regardless of how they are structured.

This case will reduce the authority of governors and state legislatures to compose state agencies, boards, and commissions as they prefer and/or be difficult to comply with.  As the SLLC’s amicus brief points out, states typically have hundreds of boards and commissions largely staffed by market participants.  States now have to either staff them differently or actively supervise them.  Governors and state legislatures may be reluctant to not include a majority of market participants on boards and commissions because market participants have needed expertise.  Active supervision will likely be onerous and expensive.

The Court was not specific about what kind of active supervision should have been occurring in this case.  According to the Court, active supervision is “flexible and content-dependent” and should provide “realistic assurance” that an agency’s anticompetitive conduct “promotes state policy, rather than merely the party’s individual interests.” 

Seth P. WaxmanThomas G. Sprankling, and Alan Schoenfeld of WilmerHale wrote the SLLC’s brief.  TheNational Governors Association, the National Conference of State Legislatures, and the Council of State Governments joined the brief.

T-Mobile South v. City of Roswell

In T-Mobile South v. City of Roswell the Supreme Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.  The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include the council meeting minutes.   

The Court agreed with the position in the State and Local Legal Center (SLLC)’s amicus brief that the reasons for a local government’s decision need not be in the same letter or document that denies the application and that council meeting minutes can be a sufficient source for the reasons for the denial.   The Court disagreed, however, with the SLLC’s argument that the council minutes need not be issued contemporaneously with the document denying the wireless provider’s application. 

T-Mobile applied to construct a 108-foot cell tower in a residential zoning area.  Two days after a council hearing on the application, where city councilmembers voted to deny the application and stated various reasons for why they were going to vote against it, Roswell sent T-Mobile a brief letter stating that the application was denied and that T-Mobile could obtain hearing minutes from the city clerk.  Twenty-six days later the minutes were approved and published.

The TCA requires that a state or local government's decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”  

The majority of the Court, in an opinion written by Justice Sotomayor, held that local governments have to provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence.  The Court rejected, however, T-Mobile’s argument that the reasons must be set forth in a formal written decision denying the application instead of council meeting minutes because nothing in the TCA “imposes any requirement that the reasons be given in any particular form.”  But the Court also held that, because wireless providers have only 30 days after an adverse decision to seek judicial review, the council meeting minutes setting forth the reasons have to be issued “essentially contemporaneous[ly]”with the denial. 

The Court’s ruling that written minutes can meet the TCA’s “in writing” requirement is favorable to local governments, many of which routinely compile meeting minutes regardless of whether a cell tower application is being considered.  But the Court’s requirement that a local government issue a denial letter and minutes at more or less the same time will be new to many local governments, and, as Chief Justice Roberts points out in his dissenting opinion, “could be a trap for the unwary hamlet or two.” 

Tim Lay, Jessica Bell, and Katharine Mapes of Spiegel & McDiarmid in Washington, D.C., wrote the SLLC’s brief which was joined by the National League of Cities, the United States Conference of Mayors the National Association of Counties, the International City/County Management Association, and the International Municipal Lawyers Association.

Integrity Staffing Solutions v. Busk

In a unanimous opinion in Integrity Staffing Solutions v. Busk the Court held that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend waiting to undergo and undergoing security screenings.  State and local government employees who work in courthouses, correctional institutions, and warehouses routinely go through security screening at the beginning and/or end of the workday.   

Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders.  They claimed that they should have been paid for the time they spent waiting and going through security screenings to prevent theft at the end of each shift.

Under the FLSA employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity.  According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  The Court concluded that security screenings were not intrinsic to retrieving and packing products and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work.

The SLLC’s amicus brief made similar arguments to those the Court adopted.  This case is a significant victory for state and local government employers who will now not be faced with higher payroll costs for employee security screenings or a mandate to reduce screenings to a de minimis amount.  

James Ho, Ashley Johnson, and Andrew LeGrand, of Gibson, Dunn & Crutcher, Dallas, Texas wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers AssociationGovernment Finance Officers Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.