© 2019 State and Local Legal Center

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.


Lomax v. Ortiz-Marquez

The State and Local Legal Center’s (SLLC) Supreme Court amicus brief in Lomax v. Ortiz-Marquez argues that a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act (PLRA). Less technically, the SLLC brief is aimed at decreasing meritless prisoner litigation.

Arthur Lomax filed three lawsuits alleging a variety of constitutional violations stemming from his expulsion from the Sex Offender Treatment and Monitoring Program at Centennial Correctional Facility.

The federal district court dismissed the first and second lawsuits as barred by Heck v. Humphrey, which holds that a litigant cannot bring a lawsuit challenging his or her conviction's legitimacy until that conviction has been dismissed. The third lawsuit was dismissed for a failure to state a claim. The first two cases were dismissed without prejudice (meaning Lomax is not permanently barred from bringing them again).

The PLRA contains a three-strikes rule disallowing an inmate who can’t pay filing fees upfront from filing a fourth lawsuit when he or she has filed three previous lawsuits which were dismissed on the grounds that they were “frivolous, malicious, or fail[] to state a claim upon which relief may be granted.”

Lomax argues he should be able to bring another lawsuit without paying filing fees upfront regardless of the three-strikes rule because two of his previous lawsuits were dismissed without prejudice. 

The Tenth Circuit ruled against Lomax, relying on “long standing precedent” that “the fact that two of the dismissals were without prejudice is immaterial.”

Most prisoners reside in either state prisons or local jails; state and local governments pay the costs of defending meritless prisoner cases. Lomax argues that the problem with ruling against him is that if a prisoner files an otherwise meritorious lawsuit with a curable problem, which is dismissed without prejudice, and this dismissal leads to a third strike, another meritorious claim is barred.

The SLLC amicus brief explains Lomax’s concerns are unfounded. First, “without-prejudice dismissals often occur when district courts throw up their hands at unintelligible . . . prisoner complaints, which is a common occurrence, to say the least.” Second, as happened in this case, courts routinely dismiss prisoner suits without prejudice on the basis of Heck v. Humphrey, because a prisoner’s conviction has yet to be dismissed. In fact, most Courts of Appeals require Heck dismissals to be entered without prejudice.

Misha Tseytlin, Sean T.H. Dutton, Elizabeth Holt Andrews, Hillary A. Lehmann, Katharine Lane Malone, Michael K. Cassata and George Laiolo of Troutman Sanders wrote the SLLC amicus brief in this case which the following organizations joined:  Council of State Governments, National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, Government Finance Officers Association, and National Sheriffs Association.  

In an amicus brief in New York State Rifle & Pistol Association Inc. v. City of New York, New York the State and Local Legal Center (SLLC) urges the Supreme Court to not apply strict scrutiny to regulations of guns carried in public.

New York State Rifle & Pistol Association Inc. v. City of New York, New York

In this case the Supreme Court agreed to decide whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel. The Second Circuit held the law is constitutional on all accounts.

A New York City administrative rule allowed residents to obtain a “carry” or “premises” handgun license. The “premises” license allowed a licensee to “have and possess in his dwelling” a pistol or revolver. Among other restrictions, a licensee was only allowed to take his or her gun to a shooting range located in the city. Challengers want to bring their handgun to their second home and to target practice outside the city.

As of July 2019, New York City and the State of New York allow premises licensees to transport handguns through the City to take them to shooting ranges or second homes located outside the City. New York City has filed a motion to the Supreme Court arguing the case is moot because “the new statute and regulation give [the challengers] everything they have sought in this lawsuit.” The Supreme Court hasn’t yet ruled on the mootness motion.

In 2008 in District of Columbia v. Heller, the Supreme Court held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” In Heller the Supreme Court didn’t confront the scope of the right to carry firearms outside of the home.

If the Supreme Court rules on the constitutionality of New York’s old premises rule the case will most likely be decided based on what level of Second Amendment scrutiny the Supreme Court applies. If the Court applies “strict scrutiny” the rule will almost certainly be struck down. To pass strict scrutiny a challenged government regulation must be “narrowly tailored to advance a compelling interest.”


Applying intermediate scrutiny, the Second Circuit held the old rule was “substantially related to the achievement of an important governmental interest.” It sought to “protect public safety and prevent crime.” And the court agreed with the former Commander of the License Division that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.”


The SLLC amicus brief urges the Supreme Court to consider the fact that “law enforcement personnel who encounter armed individuals in public will often be uncertain whether the firearms are being carried for a constitutionally protected purpose” when they rule in this case. The brief notes that “[r]ather than endorsing rigid tiers of scrutiny, Heller focused on the character of the burden that the District’s ordinance imposed.” Finally, the brief argues that New York’s former (and current) premises rule is constitutional because it only imposes a modest burden on those who wish to “bear” arms in public places.

Lawrence Rosenthal, Chapman University, Fowler School of Law wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

County of Maui, Hawaii v. Hawaii Wildlife Fund

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court will decide whether groundwater is subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements under the Clean Water Act (CWA). The State and Local Legal Center (SLLC) filed an amicus curie brief arguing that it shouldn’t be.

Maui County injects treated wastewater from wells into the groundwater. Some of the treated wastewater reaches the Pacific Ocean. The Hawaii Wildlife Fund sued the County arguing it was required to obtain a NPDES permit for these discharges.

Per the CWA, a party must obtain a NPDES permit if it discharges a pollutant from a point source to a navigable water. Wells are point sources and the Pacific Ocean is a navigable water. But the treated wastewater in this case doesn’t go directly from the well to the ocean. It is conveyed through groundwater. The Ninth Circuit assumed without deciding groundwater isn’t a point source or navigable waters.

The Ninth Circuit held that the CWA requires Maui to get a NPDES permit in this case. It concluded that the discharges in groundwater are point source discharges because “nonpoint source pollution” excludes, for example, roadway runoff that isn’t “collected, channeled, and discharged through a point source.” Here the pollutants are collected in wells. According to the lower court, they are also “fairly traceable” from the point source to the navigable water and reach the navigable water at “more than de minimis levels.”

The SLLC amicus brief provides a number of examples of discharges from water supply, sanitation, and flood control services which will require NPDES permits under the Ninth Circuit’s theory. Obtaining such permits will be costly and unnecessary. The brief explains how the NPDES permitting process is a poor match for regulating groundwater because is it designed to regulate surface water only. Finally, the brief argues that the “text, structure, and legislative history of the Clean Water Act demonstrate Congress's intent to leave the regulation of groundwater to the states.”

J.G. Andre Monette, Shawn Hagerty, and Rebecca Andrews of Best Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, International City/County Management Association, and the International Municipal Lawyers Association.