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. 

Torres v. Madrid

Excessive force is a violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” In Torres v. Madrid the State and Local Legal Center (SLLC) filed a Supreme Court amicus brief arguing that a Fourth Amendment “seizure” has not occurred when police unsuccessfully attempt to restrain someone using physical force.

In this case police officers approached Roxanne Torres thinking she may be the person they intended to arrest. At the time Torres was “tripping” from using meth for several days. She got inside a car and started the engine. One of the officers repeatedly asked her to show her hands but could not see her clearly because the car had tinted windows.

When Torres “heard the flicker of the car door” handle she started to drive thinking she was being carjacked. Torres drove at one of the officers who fired at Torres through the wind shield. The other officer shot at Torres as well to avoid being crushed between two cars and to stop Torres from driving toward the other officer.


Torres was shot twice. After she hit another car, she got out of her car and laid on the ground attempting to “surrender” to the “carjackers.” She asked a bystander to call the police but left the scene because she had an outstanding warrant. She then stole a car, drove 75 miles, and checked into a hospital using an alias.


Torres claims the police officers used excessive force against her in violation of the Fourth Amendment. The Tenth Circuit disagreed noting police officers didn’t attain physical control over Torres after they shot her. The federal circuit courts of appeals are split regarding whether an attempt to detain a suspect by physical force must be successful for a “seizure” to occur.

Among other arguments Torres claims that at common law, “mere touch with the intent to restrain effected an arrest,” and therefore a seizure. The SLLC amicus brief disagrees arguing: “[f]rom the Founding to today, ‘seizure’ has meant to ‘take possession’—thus encompassing an element of physical control.”


The SLLC amicus brief also provides practical reasons for rejecting Torres’s argument. “Fleeing suspects place officers and the public at risk, and [Torres’s] proposed definition would increase incentives to flee. In response, officers may be chilled from using the force necessary to bring suspects under physical control for fear of facing unwarranted excessive-force claims. And permitting individuals who flee to bring a Fourth Amendment claim would not deter unlawful police conduct, given that officers will not know in advance whether suspects will resist and evade capture.”

Elizabeth B. Prelogar, Allegra Flamm, Barrett J. Anderson, and Jeanne Detch, of Cooley, wrote the SLLC amicus brief, which the following organizations joined:  National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and National Sheriffs Association. 

City of Chicago v. Fulton

The State and Local Legal Center (SLLC) amicus brief in City of Chicago, Illinois v. Fulton argues that the Supreme Court should rule that a local government need not immediately return a vehicle impounded because of code violations upon a debtor filing for bankruptcy.

The City of Chicago impounds vehicles where debtors have three or more unpaid fines. Robbin Fulton’s vehicle was impounded for this reason. She filed for bankruptcy and asked the City to turn over her vehicle; it refused.


Fulton claims the Bankruptcy Code’s “automatic stay” provision requires the City to immediately return her vehicles even though she didn’t pay her outstanding tickets. The Seventh Circuit agreed.


The “automatic stay” provision of the Bankruptcy Code provides that a bankruptcy petition “operates as a stay, applicable to all entities, of … any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.”  


In a previous case decided in 2009, Thompson v. General Motors Acceptance Corp., the Seventh Circuit concluded that “exercise control” includes holding onto an asset and that “exercise control” isn’t limited to “selling or otherwise destroying the asset.” So, the court reasoned in this case, the City of Chicago “exercised control” over Fulton’s car in violation of the automatic stay by not returning it after she filed the bankruptcy petition.

The SLLC amicus brief argues that the Supreme Court should overturn the Seventh Circuit’s immediate-release rule and require a bankruptcy petitioner to file an adversary proceeding to obtain the release of a vehicle.


According to the brief, “[t]his rule protects the efficacy of traffic and parking regulations, as well as avoiding perverse incentives for owners of impounded vehicles to file bankruptcy petitions.”


The SLLC brief also points out that “construing the automatic stay as requiring the immediate release of assets would undermine the government’s ability to enforce tax, licensing, and regulatory laws.”


Scott Burnett Smith, Alexandra E. Dugan, and Stephen C. Parsley Bradley of Arant Boult Cummings LLP wrote the SLLC amicus brief which the following organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Finance Officers Association.


Carney v. Adams

Delaware’s Constitution requires that three state courts be balanced between the two major political parties. The main question before the Supreme Court in Carney v. Adams is whether this scheme violates the First Amendment. In an amicus brief the State and Local Legal Center (SLLC) argues it does not.


Per Delaware’s Constitution no more than half of the members of the Delaware Supreme Court, Superior Court, or Chancery Court may be of the same major political party.

Delaware attorney James Adams wants to be a judge in Delaware but he is an Independent. Adams claims that the First Amendment prohibits the governor from making judicial appointments based on political party.


In the three previous “patronage” cases the Supreme Court has explained “the limits on a government employer’s ability to consider a job candidate’s political allegiance.” Based on those cases the Third Circuit focused on whether judges are policymakers as First Amendment protections do not apply to them.   

The Third Circuit concluded judges aren’t policymakers. According to the lower court the “purpose of the policymaking exception is to ensure that elected officials may put in place loyal employees who will not undercut or obstruct the new administration.”

The Third Circuit reasoned “[j]udges simply do not fit this description. The American Bar Association’s Model Code of Judicial Conduct instructs judges to promote ‘independence’ and ‘impartiality,’ not loyalty.” “The Delaware Supreme Court has stated that Delaware judges ‘must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will.’ Independence, not political allegiance, is required of Delaware judges.”


The SLLC amicus brief argues that state and local governments should be able to “insulate certain decision-making bodies from the rough-and-tumble of partisan politics.” The brief argues that the patronage cases don’t apply to this case because “the person making a hiring decision—here, the Governor—has no say in whether to take partisan affiliation into account; patronage plays no part in this picture. Instead, the relevance of partisan affiliation is baked into the structure of government ahead of time, when no one can predict who will be making a given appointment at a given point in the future.”


The brief next argues if the Court applies the policymaking exception in this case it should construe it more broadly than the Third Circuit.


Finally, the brief points out that “[h]undreds of state and local governments have made a thoughtful choice to use bipartisan decision-making processes, based on their conclusion that these processes will produce the best outcomes for their communities.  They have reached this conclusion in myriad settings: from judicial selection, to elections administration, to ethics enforcement, and more.  A test which deems these reasonable choices per se unconstitutional would upend state and local governments and would defy common sense.


Kirti Datla and Kristina Alekseyeva, Hogan Lovells, wrote the SLLC amicus brief in this case which the following organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

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