Sackett v. EPA


In Sackett v. EPA the U.S. Supreme Court will decide the proper test for determining when wetlands are “waters of the United States” (WOTUS). The State and Local Legal Center (SLLC) amicus brief argues that municipal water infrastructure isn’t WOTUS.

The Clean Water Act (CWA) prohibits discharging pollutants into “navigable waters,” defined as “waters of the United States” without a permit.

CWA regulations define WOTUS to include “wetlands” that are “adjacent” to traditional navigable waters and their tributaries. In Rapanos v. United States (2006) Justice Scalia and Justice Kennedy offered competing criteria for determining when a wetland is WOTUS.  

Justice Scalia, writing for four Justices, stated that “waters of the United States” extends to “relatively permanent, standing or flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters. 

For Justice Kennedy, writing alone, if wetlands have a “significant nexus” to navigable waters they are “waters of the United States.” Kennedy’s “significant nexus” test turns on whether wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of navigable waters.  

In this case the Sacketts purchased a “soggy residential lot” 300 feet from Idaho’s Priest Lake. To the north of their lot, with a road in between, is a wetland that drains to a tributary that feed into a creek that flows southwest of the Sacketts’ property and empties into Priest Lake.

After obtaining permits from the county the Sacketts began backfilling the property with sand and gravel to create a stable grade. The Environmental Protection Agency issued the Sacketts a “formal administrative compliance order” explaining they were violating the CWA and that failure to comply could result in penalties of over $40,000 per day. 


Before the Ninth Circuit the Sacketts argued that the Scalia opinion controls whether their property contains wetlands. The Ninth Circuit disagreed and applied Justice Kennedy’s test. 


The SLLC amicus brief, filed in support of neither party, doesn’t advocate that the Court adopt a particular test to determine whether a wetland is WOTUS. Instead, the brief argues that municipal water infrastructure which provides water supply and treatment, flood control, and stormwater management protection isn’t WOTUS.  More specifically, the SLLC brief asks the Court to exclude from WOTUS aqueducts and irrigation canals, terminal reservoirs, groundwater recharge and infiltration basins, and green infrastructure.  


The brief points out, much of this infrastructure “is in close proximity to waters that would qualify as traditionally navigable, and/or includes features that could be construed as meeting the definition of WOTUS” as promulgated by the federal government. The brief argues: “A commonsense reading of the CWA, one that looks at the Act as a whole, and its implications for traditional state control of water supply and flood control, recognizes the difference between the infrastructure that amici operate and those waters that were intended to be treated as WOTUS under the Act. Failure to recognize this difference leads to absurdities and an inability of the Act to achieve its stated purpose.”

Roderick Walston and Andre Monette of Best, Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

Kennedy v. Bremerton School District

In Kennedy v. Bremerton School District, former assistant football coach Joseph Kennedy and the school district disagree over precisely why he was put on administrative leave. According to Kennedy, he wanted to say a “brief, quiet prayer by himself while at school and visible to students.” According to the school district, “Kennedy made a spectacle of delivering midfield prayers at the immediate conclusion of games and insisted that students must be allowed to join.”

The State and Local Legal Center (SLLC) amicus brief argues the First Amendment doesn’t protect Kennedy’s speech.

According to Kennedy, his religious beliefs required him to pray at the end of each game, which he did for years. Students eventually joined him as he kneeled and prayed for about 30 seconds at the 50-yard line. When the school district found out the superintendent directed Kennedy not to pray with students. After widely publicizing his plan, Kennedy announced he would pray after games even if students joined him, which they continued to do. He was ultimately put on administrative leave.

In Garcetti v. Ceballos (2006), the Supreme Court held that when government employees speak “pursuant to their official duties” the First Amendment doesn’t protect their speech. Kennedy argues his speech was private and protected by the First Amendment.

The SLLC amicus brief argues that Kennedy’s praying was part of his official job duties. “He prayed on duty while players were still in his charge, and contextual factors show that players would have reasonably viewed [his] prayers as a continuation of his earlier practice of delivering motivational religious speeches at the same time and location.”

More generally, the SLLC brief encourages the Court to recognized this “basic principle”: “[A]n employee speaks pursuant to his official duties if he speaks while on duty in a context aligning with the employee’s written or unwritten responsibilities and objective factors do not make it evident that the employee is speaking in his private capacity. The employee’s subjective intent that his speech further private aims is not controlling.  Nor is the fact that the employee’s speech expresses private beliefs that contradict the employer’s desired message.”   


If the Court concludes Kennedy wasn’t speaking as an employee, the school district may still win. The school district argues it wins under Pickering balancing which requires weighing the employer’s interests in regulating the speech and employee’s interest in speaking. The district argues it had multiple reasons for limiting Kennedy’s prayer including maintain safety and order at district events and protecting the religious liberty interests of players who didn’t want to pray.

Kennedy argues that strict (fatal) scrutiny applies to the district’s decision to regulating his prayer because of Establishment Clause concerns and that he wins applying this analysis. “The notion that the government does not endorse private speech that occurs on the schoolhouse grounds just because it does not suppress it is not just a straightforward principle that students can understand. It is bedrock constitutional law.”

The SLLC agrees Pickering should apply but argues if the Court applies strict scrutiny the school district wins. “Governments have a responsibility to refrain from giving official approval to their employees’ religious expression, in order to avoid the appearance of favoring some religions over others (or religion over non-religion) and to avoid placing coercive pressure on others to participate.”

Michael Dreeben, Ephraim McDowell, and Jenya Godina of O’Melveny & Myers wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, National Public Labor Employer Labor Relations Association, and International Public Management Association for Human Resources.

Vega v. Tekoh

The State and Local Legal Center (SLLC) amicus brief in Vega v. Tekoh argues police officers should not be able to be sued for money damages if they fail to provide a Miranda warning.

Terrance Tekoh was tried for unlawful sexual penetration. At trial he introduced evidence that his confession was coerced. A jury found him not guilty. Tekoh then sued the officer who questioned him, Deputy Carlos Vega, under 42 U.S.C. Section 1983 claiming Vega violated his Fifth Amendment right against self-incrimination by not advising him of his Miranda rights. 

Section 1983 allows persons to sue government officials for money damages who subjected them to constitutional violations. States and local governments generally pay money damages awarded.


The Ninth Circuit held Tekoh could bring a Section 1983 case.


According to the Ninth Circuit, following Miranda there was much debate over whether Miranda warnings were “constitutionally required.” In Dickerson v. United States (2000), the Supreme Court held that Congress could not overrule Miranda via a federal statute that provided confessions were admissible as long as they were voluntarily made, regardless of whether Miranda warnings had been provided. Miranda, the Supreme Court reasoned, was “a constitutional decision.”

So, according to the Ninth Circuit: “Dickerson strongly supports Tekoh's argument that a plaintiff may bring a § 1983 claim predicated on a Miranda violation when the un-Mirandized statement is used against him in criminal proceedings.” “Because Dickerson made clear that the right of a criminal defendant against having an un-Mirandized statement introduced in the prosecution's case in chief is indeed a right secured by the Constitution, we conclude that Tekoh has a claim that his Fifth Amendment right against self-incrimination was violated.”

The SLLC amicus brief argues that Miranda isn’t a constitutional right but is instead a judge-made prophylactic rule. “A plaintiff can surely bring suit under §1983 if he is actually deprived of his constitutional rights by a coercive interrogation—for instance, if he is actually forced into an involuntary confession that is later used against him in a criminal trial. But a plaintiff just as surely cannot bring suit under §1983 if he is not deprived of his constitutional rights, and instead is deprived only of a prophylactic protection that this Court has announced to preserve those rights.”


The brief points out that if a police officer fails to provide a Miranda warning a remedy is available—the exclusion of the resulting statements in any subsequent criminal trial.


The brief also points out the negative consequences for local governments if money damages are available. “The potential burden on local governments and local law enforcement is staggering. On any given day, police officers interact with tens of thousands of their fellow American citizens, often in ways that involve posing direct or indirect questions and in circumstances that may or may not be custodial. Under the Ninth Circuit’s rule, an officer would either have to provide prophylactic Miranda warnings at practically every one of those interactions, or else face potential personal liability for damages if the resulting statements are later admitted at a criminal trial over the defendant’s objection that he was in custody when they were made.”


Harker Rhodes, Kirkland & Ellis, wrote the SLLC amicus brief which the following organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International Municipal Lawyers Association, National Sheriffs’ Association, Major County Sheriffs of America, California State Association of Counties, and the City of Chicago.  


Gallardo v. Marstiller 

In Gallardo v. Marstiller the U.S. Supreme Court will decide whether the federal Medicaid Act allows a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the beneficiary’s tort recovery that compensate for future medical expenses.

The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing Medicaid should be able to collect from whatever portion of a tort settlement represents payment for medical care, including for future medical expenses, to pay for past medical expenses.

Gianinna Gallardo has been in a persistent vegetative state since she was hit by a pickup truck getting off the school bus. Florida’s Medicaid program has paid for almost $900,000 for her medical care. Her parents settled a case against multiple parties for $800,000. Per the settlement agreement, about $35,000 was for past medical expenses. The settlement also said some of its balance may represent compensation for future medical expenses. The Florida Agency for Health Care Administration (FAHCA) didn’t participate in the settlement.

The Medicaid statute requires states to enact third-party liability laws under which “the State is considered to have acquired the rights . . . to payment by any other party,” “to the extent that payment has been made under the State plan for medical assistance.”

Per Florida law if a Medicaid recipient brings a tort action against a third party that results in a settlement, FAHCA is automatically entitled to half of the recovery (after 25 percent attorney's fees and costs), up to the total amount of medical assistance Medicaid has provided, from the settlement allocated for past and future medical expenses.   

FAHCA sought to recover not just the $35,000 specifically allocated by the parties for past medical expenses. It argued it was entitled to recover, to pay for past medical costs, the portion of the settlement representing compensation for Gallardo’s future medical expenses. The Eleventh Circuit agreed.


Before the Supreme Court Gallardo argues the “plain language [of the Medicaid statute] limits the State to third-party payments for medical care for which ‘payment has been made’ by Medicaid—past medical expenses.”

FAHCA notes that per the Medicaid statute Medicaid may obtain “any rights” a beneficiary has “to payment for medical care from any third party.” According to FAHCA, “[t]hat broad language permits Medicaid to recover from any damages representing payment for ‘medical care.’”


The SLLC amicus brief agrees with FAHCA that the Medicaid statute “unambiguously treats all third-party payments for medical care as fungible, and entitles the States to seek reimbursement for the whole portion of a settlement attributable medical case, regardless of whether the care was provided in the past or will be provided in the future.” The brief points out that due to “the massive financial burden on States imposed by Medicaid, it is crucial that States have every option open to them to defray their costs.”


Christopher M. Egleson, Kelly A. Eno, James R. Horner, and Cassandra Liu of Sidley Austin wrote the SLLC amicus brief which the following organizations joined:  National Conference of State Legislatures, National League of Cities, U.S. Conference of Mayor, and Government Finance Officers Association.  

New York State Rifle & Pistol Association v. Bruen

In New York State Rifle and Pistol Association v. Bruen the U.S. Supreme Court will decide whether states and local governments may prevent persons from obtaining a concealed-carry license for self-defense if they lack “proper cause.” The State and Local Legal Center’s amicus brief asks the Court to rule in the affirmative.


In 2008 in District of Columbia v. Heller, the Supreme Court held that a “ban on handgun possession in the home violates the Second Amendment.” The Supreme Court has never opined on whether and under what circumstances a person may possess a gun outside the home.  

Per New York state law, to carry a concealed handgun for self-defense purposes a person must show “proper cause.”  New York case law requires an applicant to “demonstrate a special need for self-protection distinguishable from that of the general community” to satisfy the proper cause standard. The challengers in this case want to carry a concealed handgun but lack proper cause. 

The federal district court ruled against the challengers based on Second Circuit precedent. In a very brief opinion, noting that same Second Circuit case, the Second Circuit affirmed.

In Kachalsky v. County of Westchester (2012) the Second Circuit held that “New York’s handgun licensing scheme . . . requiring an applicant to demonstrate ‘proper cause’ to obtain a license to carry a concealed handgun in public” did not violate the Second Amendment. In Kachalsky, the Second Circuit applied intermediate scrutiny and upheld New York’s law stating: “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention,” and “the proper cause requirement is substantially related to these interests.”

The SLLC amicus brief notes that “the law has long permitted prophylactic regulation that reduces the likelihood that individuals will carry firearms in public for an improper reason.” It notes that “[a]lthough many individuals carry firearms for proper purposes, in areas riven by gang- and drug-related crime, all too often firearms on the streetscape lead to violent confrontations and endanger officers on patrol.” It points out “[a]bsent a requirement that licensees show particularized need to carry concealable firearms, licensing laws could do little to stop a proliferation of concealed weapons on the streetscape.” For these reasons, the brief argues that “a requirement that those who seek to carry handguns in public demonstrate particularized need imposes no undue burden on Second Amendment rights.”

Larry Rosenthal, Chapman University School of Law wrote the SLLC’s amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, International City/County Management Association, Major Cities Chief Association, National Police Foundation, and National Association of Black Law Enforcement Executives.