Recent Court Rulings
The Supreme Court held that a “discharge of pollutants” under the Clean Water Act (CWA) does not occur when polluted water flows from an improved portion of a navigable waterway into an unimproved portion of the same waterway. Justice Ginsburg wrote the Court’s unanimous opinion in Los Angeles County Flood Control District v. Natural Resources Defense Council.
Los Angeles County Flood Control District (LACFCD) operates a municipal separate storm sewer system (MS4) that collects, transports, and discharges stormwater. MS4 operators must obtain National Pollutant Discharge Elimination System (NPDES) permits before discharging stormwater into navigable waters. Pollution testing in concrete channels in the Los Angeles and San Gabriel Rivers revealed that water quality standards were exceeded. The Ninth Circuit held that LACFCD was responsible for the polluted water that flowed out of the concrete-lined portions of the rivers because LACFCD controlled the concrete channels, regardless of the fact that thousands of other dischargers discharged into the rivers upstream of the concrete channels.
Per the CWA, the “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” In South Florida Water Management District v. Miccosukee Tribe the Supreme Court held that an “addition” of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another. In that case polluted water was removed from a canal, transported through a pump station, and deposited into a nearby reservoir. The SLLC's brief argued that the segments of the rivers above and below the channeled portions of the rivers in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred. The Supreme Court agreed that: “[i]t follows…from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a body of water, simply flows from one portion of the water body to another.”
Roderick E. Walston and Shawn Haggerty of Best Best & Krieger LLP, in Walnut Creek, California, 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, the Council of State Governments, and the United States Conference of Mayors.
The Supreme Court held 6-3 in Armour v. Indianapolis that the City of Indianapolis didn’t violate the Equal Protection Clause when it forgave the assessments of homeowners who paid for sewer improvements in multi-year installments but issued no refunds to homeowners who paid for the same improvements in a lump sum. According to the Court, it had a rational basis—administrative considerations—for distinguishing between lot owners who already paid for their share of the sewer improvements and those who had not.
When the City moved from one method of financing sewer improvements to another method it forgave the debt of homeowners who paid for their sewer improvements in installments but gave no refund to lump sum payers. Lump sum payers sued arguing the City violated the U.S. Constitution’s Equal Protection Clause. Distinctions in tax classifications comply with the Equal Protection Clause if they have a rational basis.
Justice Breyer, writing for the majority, concluded that administrative considerations—in maintaining an administrative system that would collect debt for up to 30 years, for 20-plus construction projects, with monthly payments as low as $25 per month—provided a rational basis for distinguishing between those that had paid their assessments in full and those that had not. Citing the SLLC’s brief, the Court pointed out if the City failed to forgive installment payers’ debt it would have to “keep files on old, small, installment-plan debts, and (a City official says) possibly spend hundreds of thousands of dollars keeping computerized debut-tracking systems current.”
Jon Laramore and Scott Chinn of Faegre Baker Daniels in Indianapolis, Indiana, wrote the SLLC’s brief, which was signed onto by the International City/County Management Association, the National Association of Counties, the National Conference of State Legislatures, the National League of Cities, and the United States Conference of Mayors.
In a unanimous decision in Reichle v. Howards, the Supreme Court granted qualified immunity to two Secret Service agents, who allegedly arrested a suspect for his political speech, but had probable cause to arrest the suspect for committing a federal crime.
Steven Howards told Vice President Dick Cheney that his “policies in Iraq are disgusting” and then touched him. When questioned by Secret Service agents Howards denied assaulting or touching the Vice President and was arrested. Making a materially false statement to a federal official violates a federal statute.
In this case, the Supreme Court was asked to decide whether it is possible for an arrestee to bring a First Amendment retaliatory arrest claim where probable cause supports the arrest and whether the agents in this case were entitled to qualified immunity. The Court only answered the qualified immunity question; it granted qualified immunity to the agents. Government official are immune from lawsuits claiming they have violated someone’s constitutional or statutory rights if the law violated wasn’t “clearly established.” According to the Court it was not “clearly established” at the time of the arrest that an arrest supported by probable cause could violate the First Amendment. Justice Thomas, writing for the Court, noted that the Supreme Court has never held that a person has a First Amendment right to be free from a retaliatory arrest supported by probable cause. Also the Court noted that it held in 2006 in Hartman v. Moore that probable cause bars retaliatory prosecutions cases. A reasonable government official could have interpreted Hartman’s rationale to apply to retaliatory arrest claims.
The International City/County Management Association, the International Municipal Lawyers Association, the National Association of Counties, the National Governors Association, the National League of Cities, the United States Conference of Mayors signed onto the brief.
In a unanimous decision in Filarsky v. Delia, the Supreme Court held that an individual temporarily hired by the government to do its work is eligible for qualified immunity.
The Ninth Circuit denied qualified immunity to private attorney Steve Filarsky, where his advice to the City of Rialto in investigating a City employee lead to an illegal search, because Filarsky wasn’t a City employee. The Supreme Court reversed the Ninth Circuit reasoning that under common law part-time public servants were common and qualified immunity was granted to them. The Court also discussed a number of policy reasons for why qualified immunity should be granted to private individuals performing occasional services for the government. Some of these reasons include the fact that the “most talented candidates” may decline public assignments if they don’t receive qualified immunity, the “distractions that accompany even routine lawsuits,” and the difficulty of determining whom is working for the government full-time and permanently. The SLLC’s brief informed the Court that local governments frequently hire outside counsel, and outside attorneys are likely to raise their rates or even refuse to represent government altogether if they can never receive qualified immunity.
Geoffrey Eaton, Jacob Loshin, and John Stith of Winston & Strawn wrote the brief, which was also signed onto by the National Association of Counties, the National League of Cities, the United States Conference of Mayors, theInternational City/County Management Association, the International Municipal Lawyers Association, the National Conference of State Legislatures, and the National School Boards Association.
In a 5-4 decision in Douglas v. Independent Living Center of Southern California, the Supreme Court left it to the Ninth Circuit to decide whether a Supremacy Clause claim can be brought to enforce Medicaid.
By statute, California reduced payments to various Medicaid providers who then sued California under the Supremacy Clause claiming that Medicaid preempts California’s statutes. The question the Supreme Court accepted in this case was whether Medicaid providers and recipients could sue under the Supremacy Clause to enforce Medicaid. However, after the Supreme Court heard oral argument in this case, the Centers for Medicare and Medicaid (CMS) approved several of California’s statutory amendments to its Medicaid plan, indicating that it did not believe Medicaid preempts California’s statutes. The Supreme Court remanded this case to the Ninth Circuit to determine whether a Supremacy Clause claim may proceed in light of CMS’s action. The majority of the Court seemed skeptical that the Supremacy Clause provides a cause of action in this case; the dissent concluded it does not.
Michael W. McConnell and Stephen S. Schwartz of Kirkland & Ellis, LLP in Washington D.C. wrote the SLLC’s brief in this case which was signed onto by the the Council of State Governments, the International City/County Management Association, the National Association of Counties, the National Conference of State Legislatures, the National Governors Association, and the United States Conference of Mayors.