National Law Journal Article about the SLLC

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

SLLC September 2014 Newsletter

Find out what's new at the SLLC here

Recent Court Rulings

Burwell v. Hobby Lobby Stores

In 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.  

RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion.”  The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars state and local governments from enforcing land use regulations that substantially burden “the religious exercise of a person.” 

So, FRFA and RLUIPA are related statutes.  But FRFA only applies to the federal government, and RLUIPA only applies in the land use and institutionalized persons’ context.  Both apply to “persons.”   

If for-profit corporations are “persons” under RFRA they are also likely “persons” under RLUIPA.  As Justice Ginsburg points out in her opinion quoting the SLLC’s amicus brief, this will have negative consequences for state and local government:  “[I]t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’  That law applies to land-use regulation.  To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute's reach’ and deeply intrude on local prerogatives, contrary to Congress' intent. Brief for National League of Cities et al. as Amici Curiae 26.   

The SLLC’s amicus brief focused exclusively on how “person” should be defined in RLUIPA.  It discussed at the practical difficulties that will arise for state and local governments if corporations are “persons” under RLUIPA.  “Interpreting RLUIPA to protect for-profit, secular corporations would dramatically expand the statute's reach. For-profit corporations could avail themselves of RLUIPA's broad definition of religious exercise to characterize secular commercial activity as religious in nature. They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely result would be a dramatic increase in the number of for-profit corporations claiming to engage in ‘religious exercise,’ with a concomitant increased burden on local governments administering land use regulations.”

Aileen McGrath, Christine Van Aken, Sara Eisenberg, and Mollie Lee of the San Francisco City Attorney’s Office, San Francisco, California, wrote the SLLC’s brief.  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 signed onto the SLLC's brief.

McCullen v. Coakley

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.  Buffer zone statutes and ordinances, particularly outside the context of abortion clinics, are common. 

In 2000 Massachusetts adopted a law, modeled around the Supreme Court’s decision in Hill v. Colorado, prohibiting anyone from coming within six feet of someone entering an abortion clinic, within an 18-foot radius of the clinic.  In 2007 Massachusetts adopted a 35-foot buffer zone because protesters routinely violated the statute.  Petitioners are “sidewalk counselors.”  The buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.”

The Court reasoned the buffer-zone law violated the First Amendment because it “burden[s] substantially more speech than necessary” to achieve the state’s interests in ensuring public safety, preventing harassment, and combatting obstruction at clinic entrances. 

The Court offered state and local governments three suggestions, other than generic criminal statutes forbidding assault, breach of the peace, trespass, vandalism, etc., to deal with public safety problems at abortion clinics.  Like about a dozen states, state and local governments could pass legislation similar to the federal Freedom of Access to Clinic Entrances Act which prohibits injury, intimidation, or interference toward someone seeking an abortion.  To deal with harassment, state and local governments could criminalize following and harassing people entering a clinic.  And obstructing clinic entrances can be dealt with by statute or ordinance.

The SLLC's amicus brief asked the Court not to rule in a way that limits state and local government’s ability to use buffer zones to protect public safety in a variety of contexts.  The Court did not discuss buffer zones in other contexts but it did conclude that just because the buffer zone in this case was specific to abortion clinics did not mean the law was content-based.  Based on this conclusion, it seems likely that buffer zones that limit speech in narrow contexts (at circuses, funerals, political conventions, etc.) will not be considered context-based.  If a law limiting speech is content-based, court apply a higher standard to review when determining whether it violates the First Amendment.

Mary Jean Dolan,  International Municipal Lawyers Association Special Counsel, 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

Plumhoff v. Rickard

In Plumhoff v. Rickard the Court held 7-2 that police officers didn’t violate the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase.  Alternatively, the Court unanimously concluded the officers were entitled to qualified immunity. 

Donald Rickard drove away after being pulled over because his vehicle had only one operating headlight and was pursued by police.  He drove over 100 miles an hour and passed more than two dozen vehicles before exiting the highway where he made contact with three police cars.  Rickard’s tires were spinning and his car was rocking back and forth when Officer Plumhoff fired three shots into his car.  Rickard then reversed his car, nearly hitting an officer on foot, and again fled.  Officers fired 12 shots more killing Rickard and his passenger.

Rickard’s surviving daughter argued that the Fourth Amendment did not allow the police to use deadly force to end the chase and that even if police were permitted to fire their weapons, they fired too many shots. The Court disagreed concluding the use of deadly force was reasonable because “[u]nder the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.”  The number of shots wasn’t unreasonable because “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

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 concluded that even if the use of deadly force in this case violated the Fourth Amendment the officers would be entitled to qualified immunity.  The most on point Supreme Court case at the time of this case granted qualified immunity where the facts were less favorable to the officer than the facts in this case.  So it was not clearly established the force in this case was unreasonable. 

The SLLC’s amicus brief argued that the lower court failed to properly apply qualified immunity.  The Court noted that the lower court “said nothing about whether the officers violated clearly established law,” when denying the officers qualified immunity.   

Peter Keith, Christine Van Aken, and Vince Chhabria, San Francisco City Attorney’s Office, San Francisco, California, wrote the SLLC’s 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 International Municipal Lawyers Association signed onto the SLLC's brief. 

Wood v. Moss

In Wood v. Moss the Court unanimously granted qualified immunity to two Secret Service agents who moved anti-Bush protesters a block further from the President than pro-Bush supporters.

Pro- and anti-President Bush demonstrators had assembled on opposite sides of the street on which President Bush’s motorcade was supposed to travel to take him to a cottage in Jacksonville, Oregon, for the evening. The President made a last-minute decision to have dinner at the outdoor patio dining area of the Jacksonville Inn.  Learning of the route change, protesters moved down the street in front of the Inn.  Secret Service agents moved them two blocks down the street, about a block further away from the Inn than the supporters.  The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated.  The agents claimed they were entitled to qualified immunity.  

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.” 

Justice Ginsburg had little trouble concluding the officers in this case were entitled to qualified immunity:  “No decision of this Court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the President.” 

The SLLC’s amicus brief encouraged the Court to tour downtown Jacksonville using Google Maps Street View.  What the Justices would discover there is a parking lot adjacent to the Jacksonville Inn’s outdoor patio which the anti-Bush protesters would have had direct access to had they not been moved two blocks away.  Pro-Bush demonstrators had no direct access to the Inn where they were gathered because the side of the Inn they were facing was totally blocked by another building.  The Court observed these geographic features when concluding that the agents had a security-based rationale for moving the anti-Bush protesters out of weapons range of the President.   

Sean GallagherBen Cohen, and Britton St. Onge of Polsinelli in Denver, Colorado, wrote the SLLC’s brief in this case.  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, the International Municipal Lawyers Association, and the National Sheriffs’ Association signed onto the SLLC's brief.  

Marvin M. Brandt Revocable Trust v. United States

In Marvin M. Brandt Revocable Trust v. United States the Court held 8-1 that a private party, rather than the federal government, owns an abandoned railroad right-of-way granted by the General Railroad Right-of-Way Act of 1875.  When the federal government owns abandoned railroad rights-of-way, state and local governments may convert them into “Rails-to-Trails.”  

In 1908 the United States granted the Laramie, Hahn’s Peak and Pacific Railroad Company a right-of-way to build a railroad over public land in Wyoming pursuant to the General Railroad Right of Way Act of 1875.  In 1976 the United States granted to the Brandts a parcel of land that this right-of-way ran through.  In 2004 the successor railroad abandoned the right-of-way.  The Brandts contested the United States claim that it owns the abandoned right-of-way.

The Court ruled against the United States “in large part because it won when it argued the opposite before this Court more than 70 years ago in the case of Great Northern Railway Co. v. United States.”  In Great Northern oil was discovered under an 1875 Act right-of-way. The United States claimed that the railroad had been given only an easement (and the United States owned everything beneath the surface) because after 1871, when Congress stopped giving railroads parcels of land and only gave them rights-of-way, the United States also stopped retaining a right of reverter in the event of abandonment and instead granted railroads mere easements.

The United States and the SLLC argued that the Court should not read Great Northern as broadly and that a series of federal statutes apply to abandoned 1875 rights-of-way and grant the United States title to abandoned rights-of-way unless a state or local government establishes a “public highway,” including a recreational trail, within one year of abandonment.  The Justices discussed at oral argument the SLLC brief which argued that state and local governments have relied on these statutes.  Yet the Court concluded they don’t apply to 1875 rights-of-way because “these statutes do not tell us whether the United States has an interest in any particular right of way; they simply tell us how any interest the United States might have should be disposed of.”

Justice Sotomayor, the lone dissenter, summarizes why this case is a loss for federal, state, and local government:  “[T]he Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Charles Montange of the Law Offices of Charles H. Montange in Seattle, Washington, wrote the SLLC’s amicus 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, the International Municipal Lawyers Association, and the American Planning Association signed onto the SLLC's brief.

Sprint Communications Company v. Jacobs

In Sprint Communications Company v. Jacobs the Court held that a federal court should not have abstained from deciding a case where a state court also was reviewing a decision of the Iowa Utilities Board (IUB) because the IUB proceedings did not “resemble . . . state enforcement actions” where abstention is appropriate. 

Sprint withheld payment of intercarrier access fees for Voice over Internet Protocol calls to an Iowa communications company, Windstream, and filed a complaint with the IUB asking it to prevent Windstream from discontinuing service to Sprint.  The IUB ordered Sprint to pay, and Sprint challenged the IUB’s decision in federal and state courts simultaneously.  The Supreme Court, in a unanimous opinion, held that Younger abstention does not apply in this case.  The Court reasoned that Younger abstention only applies in three “exceptional circumstances,” including civil enforcement proceedings.  The IUB proceedings in this case did not resemble state enforcement actions because they were not “akin to criminal prosecution” and were not initiated by “the State in its sovereign capacity.”  Instead, Sprint initiated the action and no state authority investigated Sprint or filed a complaint against Sprint. 

The SLLC’s brief argues what should matter in determining whether Younger abstention applies is the strength of the state interest in the proceeding not the label of “remedial” or “coercive.”  And the integrity of the judicial process is maintained by state courts being allowed to resolve issues initiated before them that directly affect state and local government. 

Kira Klatchko and Irene Zurko of Best, Best & Krieger LLP wrote the SLLC’s brief which the National Conference of State Legislatures, the Council of State Governmentsand the International Municipal Lawyers Association signed onto.