City of Portland v. FCC

In an amicus brief, the State and Local Legal Center (SLLC) asked the U.S. Supreme Court to review the Ninth Circuit decision in City of Portland v. FCC. The lower court held that the Federal Communication Commission (FCC) Small Cell Order, which limits fees local governments can charge for use of public land to build 5G, doesn’t

violate the Telecommunications Act.  

5G requires thousands of “small cell” wireless facilities to be installed all over this country—often on land owned by local governments.

Section 253(a) of the Telecommunications Act provides that “[n]o state or local statute or regulation . . . may prohibit or have the effect of prohibiting . . . telecommunications service.” Section 253(c) allows state and local governments to “require fair and reasonable compensation” from telecommunication providers for use of public rights-of-way.

The Small Cell Order allows local governments to charge telecommunications companies using public land fees that don’t exceed the local governments costs. Per a safe harbor, application fees are presumed lawful if they are less than $500, and recurring fees if they are less than $270 per year.


Among other things, Portland argued to the Ninth Circuit the Telecommunications Act doesn’t limit local governments to recover only costs and that fees exceeding costs won’t prohibit the installation of 5G. The Ninth Circuit rejected these arguments stating: “The statute requires that compensation be ‘fair and reasonable;’ this does not mean that state and local governments should be permitted to make a profit by charging fees above costs.”


A dissenting judge concluded the FCC “has not adequately explained how all above-cost fees amount to an ‘effective prohibition’ on telecommunications or wireless service.”


The SLLC is asking the Supreme Court to review the Ninth Circuit decision because “local governments are being prevented from serving as stewards of public property, safety, and welfare.” The brief points out the installing 5G has created problems all throughout the country, which local governments have no ability to address. It argues that limiting fees to costs does not provide the “fair and just compensation,” which Congress requires. The brief posits that “the FCC ignored reality when it concluded that 5G carriers will voluntarily ‘reinvest’ in underserved areas the estimated $2 billion they will save as a result of the FCC’s order.” Finally, the brief notes that “the FCC’s conclusion that carriers cannot afford to pay an estimated $2 billion in fees to local governments to use their rights-of-way to install 5G equipment is undermined by the recent auction in which the same carriers paid the federal government $81 billion for the spectrum that will be used to offer 5G.”


John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief, which the following organizations joined:  National Association of Counties, U.S. Conference of Mayors, and Government Finance Officers Association.


PennEast Pipeline Co. v. New Jersey

In a U.S. Supreme Court amicus brief filed in PennEast Pipeline Co. v. New Jersey the State and Local Legal Center (SLLC) argues that the Natural Gas Act doesn’t allow private parties to condemn state land.


The Natural Gas Act (NGA) authorizes private gas companies like PennEast to obtain necessary rights of way through eminent domain to build pipelines. PennEast asked a federal district court to condemn 42 properties which belong to New Jersey to build a pipeline.


Before the Third Circuit, New Jersey argued that Eleventh Amendment sovereign immunity prevents a private company from haling it into court. The Eleventh Amendment prohibits states from being sued in federal court unless they have consented to suit. An exemption applies to the federal government. According to New Jersey, “the federal government cannot delegate its exemption from state sovereign immunity to private parties like PennEast.”


The Third Circuit stated that it “doubt[ed]” the federal government could delegate its exemption. But it held that even if doing do was possible Congress failed in the NGA because it didn’t use “unmistakably clear” language to abrogate state sovereign immunity. The Third Circuit noted “the NGA does not even mention the Eleventh Amendment or state sovereign immunity. Nor does it reference ‘delegating’ the federal government’s ability to sue the States.”


The SLLC amicus brief urges the Court to reject PennEast’s argument that “silence as to State lands in the NGA constitutes a satisfactorily clear statement that Congress intended to allow private parties to step into the shoes of the federal sovereign and exercise eminent domain authority—free from political accountability—over State lands.”  The brief points out that states, working closely with local governments, manage their natural resources through extensive statutory and regulatory schemes. “The Constitution establishes a careful balance between Federal and State authority, preserving the integrity, dignity, and residual sovereignty of the States. Allowing private parties to invoke the Federal government’s authority to condemn State lands would dramatically alter the Federal-State balance.”


Jennifer Selendy, Erica Iverson, Vivek Tata, and Adam Hersh of Selendy & Gay wrote the SLLC amicus brief which the following organizations joined:  Council of State Governments, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

Cedar Point Nursery v. Hassid


In a Supreme Court amicus brief in Cedar Point Nursery v. Hassid the State and Local Legal Center (SLLC) argues that temporary entry onto private property by government officials isn’t a “taking.”

The U.S. Constitution’s Fifth Amendment allows the government to “take” private property as long as it pays “just compensation.” In this case, a number of agriculture employers argue California regulations “take” their property by allowing union organizers access to agricultural employees on the grower’s property. The access period may be during four 30-day periods each year for up to three hours each day. The union organizers must provide notice to the employers.

The Ninth Circuit ruled against the employers stating “[t]he Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking.” The Ninth Circuit found no permanent physical invasion in this case. A dissenting judge opined that the regulation causes a physical taking because it prevents growers from excluding people from their property regardless of the duration of the invasion.

Before the Supreme Court the agriculture growers argue that a “permanent albeit time-limited easement effects a physical taking.”  

In a brief filed on behalf of neither party, the SLLC amicus brief argues that no taking occurs when government employees and officials temporarily enter private property to exercise their police powers to protect people and property. The brief points out “[f]rom restaurant inspections to guardian ad litem home visitations, limited purpose physical intrusions by governments are an ubiquitous feature of American life.” The brief argues that precedent and practical considerations foreclose the agriculture growers proposed “revolution in takings jurisprudence whereby governments must pay whenever they enter onto private land.”

Matthew Littleton and David T. Goldberg, Donahue, Goldberg, Weaver & Littleton, wrote the SLLC amicus brief on behalf of the following organizations:  National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Finance Officers Association.

Fulton v. City of Philadelphia

The City of Philadelphia refused to contract with Catholic Social Services (CSS) to place foster care children because CSS wouldn’t work with same-sex couples. Philadelphia requires all foster care agencies to follow its “fair practices” ordinance, which prohibits sexual orientation discrimination in public accommodations.


The main question in Fulton v. City of Philadelphia is whether Philadelphia has violated the First Amendment’s Free Exercise of Religion or Free Speech Clauses.

In this case the Supreme Court also has agreed to decide whether to overturn Employment Division v. Smith (1990), in which the Court held that individuals must comply with “valid and neutral law[s] of general applicability” regardless of their religious beliefs.

The State and Local Legal Center (SLLC) amicus brief focuses solely on encouraging the Court to keep Smith.


The brief argues that Smith has provided a “clear, workable rule” to local governments for thirty years. “Replacing Smith with strict scrutiny review of exemption denials would be unworkable. Such review would be fact-intensive and unpredictable, as the concurring and dissenting opinions in Smith revealed.”


The brief also argues that revisiting Smith would harm local governments in numerous ways, because “whenever they denied religious exemptions to neutral, generally applicable laws, they could face constitutional challenges in court” from employees and private contractors.


Finally, the brief points out that Smith allows local governments to promote economic growth by protecting LGBT individuals from discrimination.


John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, International City/County Management Association, International Municipal Lawyers Association, and National Public Employer Labor Relations Association.