PennEast Pipeline Co. v. New Jersey

In PennEast Pipeline v. New Jersey the U.S. Supreme Court held 5-4 that the federal government may constitutionally grant pipeline companies the authority to condemn necessary rights-of-way in which a state has an interest. Pipeline companies likewise may sue states to obtain the rights-of-way. The State and Local Legal Center (SLLC) filed an amicus brief asking for the Court to reach the opposite conclusion.

Per the Natural Gas Act (NGA) natural gas companies, upon a showing of “public convenience and necessity,” may receive a certificate from the Federal Energy Regulatory Commission allowing them to use federal eminent domain power to obtain land to locate a pipeline. After receiving such a certificate, PennEast filed a complaint to condemn land in which New Jersey has an interest. New Jersey claimed sovereign immunity prevented PennEast from being able to sue the state in federal court.


In an opinion written by Chief Justice Roberts the Supreme Court held that the NGA follows precedent allowing private parties to exercise federal eminent domain over state land and that sovereign immunity doesn’t bar the lawsuit in this case.


Regarding the NGA following precedent the Court cited to Oklahoma ex rel. Phillips v. Guy F. Atkinson Co. (1941), holding that federal eminent domain applies to state land. Likewise, in Cherokee Nation v. Southern Kansas Railroad Co. (1890), the Court stated that a private party could exercise federal eminent domain over state land.


Eleventh Amendment sovereign immunity prohibits states from being sued with some exceptions. According to dissenting Justice Barrett, joined by Justices Thomas, Kagan, and Gorsuch, no exception applies in this case so PennEast couldn’t sue New Jersey. To these Justices, the NGA is just another “exercise of Congress’ power to regulate interstate commerce,” and “Congress cannot authorize private suits against a nonconsenting State pursuant to its Commerce Clause power.”

A majority of the Justices disagreed citing to the “plan of the [Constitutional] Convention” exception. According to the Court, “a State may be sued if it has agreed to suit in the ‘plan of the Convention,’ which is shorthand for ‘the structure of the original Constitution itself.’” The Court opined that the cases discussed above show the states “consented in the plan of the Convention to the exercise of federal eminent domain power, including in condemnation proceedings brought by private delegates.”

The SLLC amicus brief favored sovereign immunity in this case arguing, among other things, that the NGA contains no “clear statement” of Congressional intent to delegate its power to sue states to private parties. But, according to the Court, the correct issue is whether the United States can delegate its eminent domain power to private parties. “Regardless whether the Federal Government must speak with unmistakable clarity when delegating its freestanding exemption from state sovereign immunity (assuming such a delegation is even permissible), there is no similar requirement when the Federal Government authorizes a private party to exercise its eminent domain power.”


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 Cedar Point Nursery v. Hassid the Supreme Court held 6-3 that a California regulation allowing union organizers access to agriculture employers’ property to solicit support for unionization up to three hours a day, 120 days a year is a per se physical taking under the Fifth and Fourteenth Amendments.

The Fifth Amendment Taking Clause, applicable to the states through the Fourteenth Amendment, states: “[N]or shall private property be taken for public use, without just compensation.” In this case agriculture employers argued California’s union access regulation “effected an unconstitutional per se physical taking . . . by appropriating without compensation an easement for union organizers to enter their property.” The Supreme Court agreed.

According to Chief Justice Roberts, writing for the majority, “[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.” But when the government “instead imposes regulations that restrict an owner’s ability to use his own property” the restrictions don’t require “just compensation” unless they go “too far.”  

The Court held the access regulation “appropriates a right to invade the growers’ property” and therefore constitutes a per se physical taking rather than a regulatory taking. “Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”

The Court noted that “[t]he right to exclude is ‘one of the most treasured’ rights of property ownership.” “Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation.”


State and local government official routinely go onto private property temporarily to do police work and conduct inspections, among many other reasons. The State and Local Legal Center (SLLC) filed an amicus brief in this case on behalf of neither party arguing temporary entry onto private property by government officials isn’t a per se physical taking. The Court stated that “government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners” and “government health and safety inspection regimes will generally not constitute takings.”


Justices Breyer, joined by Sotomayor and Kagan, dissented. According to Justice Breyer: In the majority’s view “virtually every government-authorized invasion is an ‘appropriation.’ But this regulation does not ‘appropriate’ anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes ‘too far.’ In my view, the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical. And though the majority attempts to create exceptions to narrow its rule the law’s need for feasibility suggests that the majority’s framework is wrong.”


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 U.S. Supreme Court held unanimously in Fulton v. Philadelphia that the City of Philadelphia violated the First Amendment when it refused to contract with Catholic Social Service (CSS) to certify foster care families because CSS refuses to work with same-sex couples.

Philadelphia contracts with CSS, and over 20 other agencies, to certify foster care families. When the city discovered that CSS wouldn’t certify same-sex couples because of its religious beliefs the city refused to continue contracting with CSS. The city noted CSS violated the non-discrimination clause in its foster care contract. CSS sued the city claiming its refusal to work with CSS violated the Free Exercise and Free Speech Clauses of the First Amendment.

Chief Justice Roberts, writing for the Court, concluded that the city violated CSS’s free exercise of religion rights. He noted that in Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court held that “laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.” In other words, neutral and generally applicable laws are generally constitutional even if they burden religion. But, the Court held, Smith didn’t apply in this case because the city’s non-discrimination clause allowed for exceptions, meaning it wasn’t generally applicable.


Because Smith didn’t apply the city’s refusal to contract with CSS had to be evaluated under strict scrutiny. “A government policy can survive strict scrutiny only if it advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.” The city cited three interests in ensuring non- discrimination when certify foster families: maximizing the number of foster parents, protecting the city from liability, and ensuring equal treatment of prospective foster parents and foster children.

According to the Court: “Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS’s certification practices.”


As for equal treatment of prospective foster parents and foster children, Chief Justice Roberts wrote: “We do not doubt that this interest is a weighty one, for ‘[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.’ On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”


One of the questions the Supreme Court agreed to decide in this case was whether to overrule Smith. The State and Local Legal Center (SLLC) filed an amicus brief asking Court not to do so. The brief argued that Smith has provided a “clear, workable rule” to local governments for thirty years.

The Court had no occasion to overturn Smith in this case is as it concluded Smith didn’t apply.  

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. 

City of San Antonio, Texas v., L.P.

In City of San Antonio, Texas v. the U.S. Supreme Court held unanimously that federal district courts may not alter a court of appeals’ allocation of appellate costs. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for district court discretion.


The City of San Antonio won in federal district court a class action lawsuit against online travel companies (OTCs) after they collected hotel occupancy taxes on the wholesale rate rather than the retail rate consumers paid. The OTCs were ordered to pay $55 million. To avoid paying the judgment while they appealed, the OTCs purchased a bond.  

On appeal, the Fifth Circuit ruled against San Antonio. Each party, win or lose, generally pays most of its own litigation expenses, including attorney’s fees, except “costs.” Federal Rule of Appellate Procedure 39(a) states that unless the “court orders otherwise” the party losing on appeal pays appellate costs, including bond premium costs.


In this case, total costs were over $2 million—most of which were bond costs. When describing its judgment against San Antonio, the Fifth Circuit didn’t “depart[] from the default allocation” of costs. Before the district court San Antonio argued it had discretion to not require San Antonio to pay some or all of the appellate costs. The district court and the Fifth Circuit disagreed.  


Before the Supreme Court, San Antonio argued the appellate court may say “who can receive costs (party A, party B, or neither)” but lacks “authority to divide up costs,” instead the district court has this discretion. The OTCs argued that the appellate court has the discretion to divide up appellate costs “as it deems appropriate and that a district court cannot alter that allocation.”

The Supreme Court, in an opinion written by Justice Alito, agreed with the OTCs, focusing on the “orde[r] otherwise” language in the federal rules.  According to the Court: “This broad language does not limit the ways in which the court of appeals can depart from the default rules, and it certainly does not suggest that the court of appeals may not divide up costs.” Understanding that courts of appeals may allocate appellate costs, “it is easy to see why district courts cannot exercise a second layer of discretion. Suppose that a court of appeals, in a case in which the district court’s judgment is affirmed, awards the prevailing appellee 70% of its costs. If the district court, in an exercise of its own discretion, later reduced those costs by half, the appellee would receive only 35% of its costs—in direct violation of the court of appeals’ directions.”


The SLLC amicus brief pointed out that as frequent litigators local governments would sometimes benefit from the rule the Court adopted in this case. Nevertheless, the SLLC argued in favor of discretion to district courts to allocate appellate costs because district courts “are best positioned to make the fact-intensive determination of whether taxable appellate costs—most notably bond premiums—should be reduced or denied.” The Court reject this argument stating: “Most appellate costs are readily estimable, rarely disputed, and frankly not large enough to engender contentious litigation in the great majority of cases.”


Rick Simpson and Emily Hart of Wiley Rein and Andrew Hessick and Luke Everett of UNC School of Law 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, and International Municipal Lawyers Association.


Caniglia v. Strom 

In a four-page opinion the U.S. Supreme Court held unanimously in Caniglia v. Strom that police community caretaking duties don’t justify warrantless searches and seizures in the home.

During an argument with his wife, Edward Caniglia put a handgun on their dining room table and asked his wife to “shoot [him] now and get it over with.” After spending the night at a hotel Caniglia’s wife couldn’t reach him by phone and asked police to do a welfare check. Caniglia agreed to go to the hospital for a psychiatric evaluation after officers allegedly promised not to confiscate his firearms. The officers went into his home and seized his guns regardless. 

Caniglia sued the officers for money damages claiming that he and his guns were unconstitutionally seized without a warrant in violation of the Fourth Amendment.   

In Cady v. Dombrowski (1973), the Court held that a warrantless search of an impounded vehicle for an unsecured firearm didn’t violate the Fourth Amendment. According to the Court in that case “police officers who patrol the ‘public highways’ are often called to discharge noncriminal ‘community caretaking functions,’ such as responding to disabled vehicles or investigating accidents.” The First Circuit ruled in favor of the police officers in Caniglia extending Cady’s “community caretaking exception” to the warrant requirement beyond the automobile.

Justice Thomas, writing for the Court, rejected the First Circuit’s extension of Cady. Justice Thomas noted the Cady opinion repeatedly stressed the “constitutional difference” between an impounded vehicle and a home. “In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car ‘parked adjacent to the dwelling place of the owner.’”


Caniglia argued that unless a “true emergency,” is taking place, no entry into a home by police without a warrant can ever be reasonable. The Court didn’t go that far. In Justice Alito’s words, it simply held that “there is no special Fourth Amendment rule for a broad category of cases involving ‘community caretaking.’”


The State and Local Legal Center (SLLC) filed an amicus brief asking the Court to reject Caniglia’s proposed rule. In three concurring opinions, a number of Justices discussed some of concerns the SLLC raised regarding the nature and frequency of police community caretaking activities, to discourage the Court from issuing a broad opinion in this case.


In a one-paragraph opinion, Chief Justice Roberts, joined by Justice Breyer, agreed to join the majority opinion because it didn’t undermine precedent allowing warrantless entry into the home when there is a “need to assist persons who are seriously injured or threatened with such injury.”


Justice Alito emphasized the narrowness the Court’s decision stating: “While there is no overarching ‘community caretaking’ doctrine, it does not follow that all searches and seizures conducted for non-law-enforcement purposes must be analyzed under precisely the same Fourth Amendment rules developed in criminal cases. Those rules may or may not be appropriate for use in various non-criminal-law-enforcement contexts.” He also encouraged states to consider instituting warrant procedures for welfare checks.


Justice Kavaunagh opined that “the Court’s exigency precedents, as I read them, permit warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now.” Justice Kavanaugh offered examples, similar to those in the SLLC brief, of police being able to enter a home without a warrant when a person is suicidal or elderly and uncharacteristically absent from church.


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, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

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

In B.P. v. Mayor and City Council of Baltimore the U.S. Supreme Court ruled 7-1 that a federal court of appeals may review any grounds the district court considered for trying to remove a case to federal court where one of the grounds was federal officer or civil rights removal.


The State and Local Legal Center (SLLC) filed an amicus brief in favor of limiting federal appellate court review to only federal officer or civil rights removal.

The mayor and City of Baltimore sued various energy companies in Maryland state court “for promoting fossil fuels while allegedly concealing their environmental impacts.”

Defendants may “remove” a case to federal court brought in state court if the federal court has jurisdiction over it. In federal district court BP argued for federal court jurisdiction on numerous grounds, including the federal officer removal statute. As Justice Gorsuch explains, this statute “promises a federal forum for any action against” a private defendant acting at the “federal government’s behest.”

The federal district court rejected all the grounds BP alleged supported removing the case to federal court. It remanded the case back to Maryland state court, and B.P. appealed.

Federal appellate courts generally lack the power to review a district court order remanding a case to state court. However, 28 U.S.C. §1447(d) includes two exceptions: “an order remanding a case to the State court from which it was removed pursuant to [the federal officer removal statute or the civil-rights removal statute] shall be reviewable by appeal.”

The Fourth Circuit only reviewed the part of the district court’s order discussing federal officer removal.  

The Court, in an opinion written by Justice Gorsuch, concluded that if a defendant relies on the federal officer removal statute (or the civil rights removal statute) when trying to remove a case to federal court, the appellate court “may review the merits of all theories for removal that a district court has rejected.” The Court looked to the statute’s use of the term “order.”  An “order” is a “written direction or command delivered by . . . a court or judge.” The district court order in this case “rejected all of the defendants’ grounds for removal.” So “the statute allows courts of appeals to examine the whole of a district court’s ‘order,’ not just some of its parts or pieces.”

In her solo dissent Justice Sotomayor discussed the problem of gamesmanship, which was one of the arguments in the SLLC amicus brief for rejecting broad appellate court review in this case. The SLLC brief points out the Court’s ruling will encourage litigants to make weak federal officer removal arguments “when all they really want is a hook to allow appeal of some different subject.”

According to Justice Sotomayor this has happened in this case. “[B.P.] listed eight grounds for removal to federal court, including [federal officer removal]. But [B.P.] now ask[s] only for a ruling that removal was proper under . . . federal-question jurisdiction. Had [B.P.] relied solely on [federal-question jurisdiction] before the District Court, as they do now, no one disputes their argument would be unreviewable on appeal.”

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. Regardless of the Court’s holding climate change cases will still be litigated in state court, as long as federal courts find no federal court jurisdiction.


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.

Torres v. Madrid 

In a 5-3 decision in Torres v. Madrid the U.S. Supreme Court held that a person may be “seized” by a police officer per the Fourth Amendment even if the person gets away. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for the opposite result.

In this case, police officers intended to execute a warrant in an apartment complex. Though they didn’t think she was the target of the warrant, they approached Roxanne Torres in the parking lot. Torres got in a car. According to Torres, she was experiencing methamphetamine withdrawal and didn’t notice the officers until one tried to open her car door.

Though the officers wore tactical vests with police identification, Torres claims she only saw the officers had guns. She thought she was being car jacked and drove away. She claims the officers weren’t in the path of the vehicle, but they fired 13 shots, hitting her twice. Torres drove to a nearby parking lot, asked a bystander to report the attempted carjacking, stole another car, and drove 75 miles to a hospital.


Torres sued the police officers claiming their use of force was excessive in violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” The officers argued, and the lower court agreed, that Torres couldn’t bring an excessive force claim because she was never “seized” per the Fourth Amendment as she got away.


The rule the Supreme Court adopted in this case, as articulated by Chief Justice Roberts, is the “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”


In California v. Hodari D. (1991), the Supreme Court stated that the common law treated “the mere grasping or application of physical force with lawful authority” as an arrest, “whether or not it succeeded in subduing the arrestee.” The Chief Justice acknowledged that despite this language, Hodari D. didn’t answer the question in this case, which involves officer use of force. Hodari D. involved police officer “show of authority” which doesn’t become an arrest until the suspect complies with the demand to stop. 

Citing to an English case from 1828, the Court “independently” concluded that “the common law rule identified in Hodari D.—that the application of force gives rise to an arrest, even if the officer does not secure control over the arrestee—achieved recognition to such an extent that English lawyers could confidently (and accurately) proclaim that ‘[a]ll the authorities, from the earliest time to the present, establish that a corporal touch is sufficient to constitute an arrest, even though the defendant do not submit.’”


Citing to the SLLC amicus brief Chief Justice Roberts explicitly rejected the brief’s argument that the common law doctrine recognized in Hodari D. is just “a narrow legal rule intended to govern liability in civil cases involving debtors.”

Justices Thomas and Alito joined Justice Gorsuch’s lengthy dissent chastising the majority for “lean[ing] on (really, repurpose[ing]) an abusive and long-abandoned English debt-collection practice.” The dissent also opined the majority was wrong about common law; an “arrest” at common law “ordinarily required possession.”

Elizabeth B. Prelogar (now Acting Solicitor General), 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. 

Uzuegbunam v. Preczewski

In Uzuegbunam v. Preczewski the Supreme Court held 8-1 that to have a “redressable injury” required to bring a lawsuit a plaintiff need only ask for nominal damages ($1). The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Court to hold that a lawsuit for nominal damages only is moot. 

Chike Uzuegbunam was threatened with disciplinary action for speaking about his religion in the “free speech expression areas” at Georgia Gwinnett College, a public college where he was enrolled.

He and another student, Joseph Bradford, who decided not to speak about his religion because of what happened to Uzuegbunam, sued the college claiming its campus speech policies violated the First Amendment. They asked for nominal damages and an injunction requiring the college to change its speech policies.


The college got rid of the challenged policies and argued the case was now moot. Had Uzuegbunam also brought a claim for actual damages (for example, bus fare getting to and from campus) both parties agree his case would not be moot.   


To establish standing, among other requirements, a plaintiff must ask for a remedy that is redressable, meaning likely to address his or her past injuries. In an opinion written by Justice Thomas the Court held that Uzuegbunam’s claim for nominal damages is intended to redress a past injury. According to the Court the prevailing rule, “well established” at common law, was “that a party whose rights are invaded can always recover nominal damages without furnishing any evidence of actual damage.”


The Court stated a request for nominal damages doesn’t “guarantee[] entry to court” as it only addressed whether nominal damages satisfy the redressability element of standing. The Court also didn’t decide whether Bradford could pursue a nominal damages claim noting nominal damages “are unavailable where a plaintiff has failed to establish a past, completed injury.”


In his solo dissent Chief Justice Roberts questioned the merits of relying on British common law to resolve this case because in England “all jurisdictions of courts [were] either mediately or immediately derived from the crown” and advisory opinions were permitted. But the U.S. Constitution Framers “sought to limit the judicial power to ‘Cases’ and ‘Controversies.’” Regardless, Roberts read the common law differently than the Court concluding it is “entirely unclear whether common law courts would have awarded nominal damages in a case like the one before us.”


Roberts’ dissenting opinion repeatedly mentions one of the concerns the SLLC articulated in its amicus brief that per the Court’s opinion, “federal courts [must now] open their doors to any plaintiff who asks for a dollar.”

But Roberts, and Kavanaugh, in a one-paragraph concurring opinion, see a “sweeping exception” to the Court’s “sweeping exception to the case-or-controversy requirement.” “Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff’s claims.” According to Roberts: “This is a welcome caveat, and it may ultimately save federal courts from issuing reams of advisory opinions.” It may also save state and local governments the burden of briefing the court and defending a policy which they have abandoned—over $1.  


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.

City of Chicago v. Fulton

In an 8-0 decision in City of Chicago v. Fulton, the U.S. Supreme Court held that the City of Chicago didn’t violate the Bankruptcy Code’s automatic stay provision by holding onto a vehicle impounded after a bankruptcy petition was filed.  The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Court to reach this result.

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 return her vehicle; it refused. The Seventh Circuit held the City violated the Bankruptcy Code’s automatic stay provision. The Supreme Court unanimously reversed.

When a bankruptcy petition is filed, an “estate” is created which includes most of the debtor’s property. An automatic consequence of the bankruptcy petition is a “stay” which prevents creditors from trying to collect outside of the bankruptcy forum. The automatic stay prohibits “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.”


The Bankruptcy Code also has a “turnover” provision which requires those in possession of property of the bankruptcy estate to “deliver to the trustee, and account for” that property.


The Supreme Court held that “mere retention” of a debtor’s property after a bankruptcy petition is filed doesn’t violate the automatic stay. According to Justice Alito, “[t]aken together, the most natural reading of . . . ‘stay,’ ‘act,’ and ‘exercise control’—is that [the automatic stay provision] prohibits affirmative acts that would disturb the status quo of estate property as of the time when the bankruptcy petition was filed.”


However, the Court, conceded it did not “maintain that these terms definitively rule out” an alternative interpretation. According to the Court, “[a]ny ambiguity in the text of [the automatic stay provision] is resolved decidedly in the City’s favor” by the turnover provision. First, reading “any act . . . to exercise control” in the automatic stay provision “to include merely retaining possession of a debtor’s property would make that section a blanket turnover provision,” rendering the turnover provision “largely superfluous.” Second, the turnover provision includes exceptions that the automatic stay provision doesn’t include. “Under respondents’ reading, in cases where those exceptions to turnover . . .  would apply, [the automatic stay provision] would command turnover all the same.”


According to Justice Sotomayor, in a concurring opinion, “the City’s policy of refusing to return impounded vehicles satisfies the letter of the Code, it hardly comports with its spirit.” Justice Sotomayor opined that the City may have violated a number of other provisions of the Bankruptcy Code, including the turnover provision.


The SLLC amicus brief argued for the rule the Supreme Court adopted. 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 pointed 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

In Carney v. Adams the Supreme Court held unanimously that James Adams lacked standing to challenge a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance.

Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” So, as a practical matter, to be on three of Delaware’s courts a person must belong to one of the two major political parties.


James Adams, a Delaware lawyer and political independent, sued Governor Carney claiming Delaware’s major party requirement is unconstitutional. The Court, in an opinion written by Justice Breyer, concluded Adams lacks standing to bring this lawsuit.


To have standing a litigant must “prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.” For Adams to prove he was harmed he had to “at least show that he is likely to apply to become a judge in the reasonably foreseeable future if Delaware did not bar him because of political affiliation.” According to Justice Breyer, “three considerations, taken together, convince us that the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.”


First, while Adams twice said he would apply for judicial openings, he made these statements “without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.”


Second, “Adams’ failure to apply previously when he was eligible, his reading of the law review article [suggesting the major party rule was unconstitutional], his change of party affiliation [from Democrat to Independent], and his swift subsequent filing of the complaint show a desire to vindicate his view of the law,” rather than to actually obtain a judgeship.


Finally, “if we were to hold that Adams’ few words of general intent—without more and against all contrary evidence—were sufficient here to show an ‘injury in fact,’ we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions at the request of one who, without other concrete injury, believes that the government is not following the law.”


While the Supreme Court didn’t discuss the merits of this case, Adams argued that the First Amendment prohibits the governor from making judicial appointments based on political party. The State and Local Legal Center (SLLC) filed an amicus brief disagreeing.


In a brief concurring opinion, Justice Sotomayor picked up on an argument in the SLLC’s brief that states and local governments routinely rely on bipartisan decision-making processes in judicial selection, elections administration, ethics enforcement, and more. Justice Sotomayor noted that partisan balance requirements “have existed in various forums for roughly 150 years, currently feature in a large number of public bodies, and have been shown to help achieve ideological diversity.”

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.