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.

B.P. v. Mayor and City Council of Baltimore

The issue in B.P. v. Mayor and City Council of Baltimore is whether a federal appellate court may review all the grounds upon which a defendant claims its case should not be sent back to state court when only one of the grounds the defendant alleges is specifically listed in federal statute as a basis for federal appellate court review. The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief arguing that federalism supports limiting federal appellate court review.

The mayor and City of Baltimore sued 26 oil and gas companies in Maryland state court claiming their role in climate change has violated Maryland law.

Federal law allows defendants to “remove” a case brought in state court into federal court if the federal court has jurisdiction over the case. BP claims that the federal court has jurisdiction to hear this case on eight grounds, including the federal officer removal statute. This statute allows federal courts to hear cases involving a private defendant who can show that it “acted under” a federal officer, has a “colorable federal defense,” and that the “charged conduct was carried out for [or] in relation to the asserted official authority.” 

 

The federal district court rejected all eight grounds BP alleged supported removing this case to federal court. The federal district court remanded the case back to Maryland state court.

 

28 U.S.C. §1447(d) generally disallows federal courts of appeals to review federal district court orders remanding a case back to state court which was removed to federal court. The statute creates an exception for reviewing “an order remanding a case to the State court for which it was removed pursuant to” the federal officer removal statute or the civil-rights removal statute (not at issue in this case). 

 

BP asked the Fourth Circuit to review all eight of its grounds for removing the case to federal court because one of the grounds it alleged--federal officer removal--is an exception allowing federal appellate court review.

 

The Fourth Circuit refused to review all eight grounds. It cited to a Fourth Circuit case decided in 1976, Noel v. McCain, holding that “when a case is removed on several grounds, appellate courts lack jurisdiction to review any ground other than the one specifically exempted from §1447(d)’s bar on review.”

The SLLC amicus brief argues that “[s]tatutory text, congressional ratification of preexisting interpretations, legislative intent, and the principles animating our federalist system all . . . support affirmance of the Fourth Circuit’s decision in this case.” More specifically, the brief argues that “[r]espect for state sovereignty requires that the historic relationship between state and federal courts in the administration of justice continue unimpaired so that state courts may try state cases free from federal court interruption.”

While the issue in this case has been raised in other climate change cases pending in the lower courts, it is not unique to climate change litigation.

 

Robert S. Peck, Center for Constitutional Litigation, wrote the SLLC amicus brief which the following organizations joined: National Conference of State Legislatures, Council of State Governments, National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

 

Uzuegbunam v. Preczewski

In an amicus brief in Uzuegbunam v. Preczewski the State and Local Legal Center (SLLC) argues that when a government entity changes a policy after a lawsuit has been filed and the plaintiff only asks for nominal damages the case is moot.

Two Georgia Gwinnett College students sued the college over its Freedom of Expression policy, which only allowed students to engage in expressive activities in two designated areas after getting a permit. They sought an injunction preventing the college from enforcing its policy and nominal damages of $1. The college then changed the policy.

The Eleventh Circuit concluded that the students’ claims for nominal damages don’t keep this case alive. Circuit precedent reasoned that nominal damages have no practical effect absent “a well-pled request for compensatory damages.” The students didn’t ask for compensatory damages. The parties disagree over whether they may have been entitled to them.

 

The SLLC amicus brief argues that “[w]hen only nominal damages are at stake, because a law or policy has been changed and there has been no actual injury, a judicial determination will not redress anything and the case is moot. That judicial determination would be no more than an advisory opinion that at best would provide some measure of psychic satisfaction to one of the parties.”

The brief also argues that federalism supports a finding of mootness in this case. “Governmental entities must often make difficult judgment calls affecting the constitutional rights of individuals under circumstances in which the law is not clear. If a state, local government, or school district later determines that a law or policy should be rescinded or modified because the circumstances have changed, competing interests have been reevaluated, or the constitutionality of the law or policy has been questioned, it should not be punished by facing expensive and time-consuming litigation when there has been no compensable harm.”

Patrick M. Kane, Kip D. Nelson, and Christopher McNamara of Fox Rothschild wrote the SLLC amicus brief which the following organizations joined: National Conference of State Legislatures, 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 School Boards Association.

J.K.J. and M.J.J. v. Polk County

In J.K.J. and M.J.J. v. Polk County the Seventh Circuit held Polk County liable for a single-incident of unconstitutional conduct on the theory that it could have done more to prevent the constitutional violation. The State and Local Legal Center (SLLC) has asked the Supreme Court to review this holding because it expands Monell liability for local governments.   

In Monell v. Department of Social Services (1978), the Supreme Court held that local governments may only be legally responsible for constitutional violations of their employees where a “municipal policy or custom” caused the constitutional injury.

In this case a correctional officer repeatedly sexually assaulted two women in the Polk County jail. They sued the county and the correctional officer for violating their Eighth and Fourteenth Amendment rights. A jury ruled found the county liable. The county claimed it wasn’t liable for the officer’s actions under Monell.

 

The county’s written policy prohibited sexual contact between inmates and guards. The county also disciplined another guard who made “predatory sexual advances toward a different female inmate.” For these reasons, the Seventh Circuit acknowledged the county had no policy or practice of tolerating sexual assault against inmates. Yet, pointing to “prevention and detection gaps in its written policies and the absence of training,” it held the county was liable because it could have done more to prevent the sexual assaults.

The SLLC has filed an amicus brief in this case asking the Supreme Court to review the Seventh Circuit’s decision because it expands liability for local governments beyond Monell. The brief argues that expanding Monell “undermines the carefully-crafted power balance between the federal government and the States by enabling federal courts to take over local governments and micromanage their daily operations.”

The brief also points out the Seventh Circuit’s holding in this case is potentially very broad because it could apply

to all areas of a local government’s day-to-day operation. Finally, it also notes that creating liability for local governments under federal law for a single-incident of unconstitutional conduct by a government employee may be unnecessary as state law claims may be brought in some states.

John M. Reeves of Reeves Law wrote the SLLC amicus brief in this case which the following organizations joined:  National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, and International Municipal Lawyers 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. 

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. 

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