Commerce Clause/Flow Control Ordinances

In United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Court upheld ordinances requiring the use of governmentally owned waste management facilities against a dormant Commerce Clause challenge.

First Amendment

In Oscar Renda Contracting, Inc. (“ORC”) v. Lubbock, Texas, NLC prepared a brief on behalf of itself and the Texas Municipal League supporting a petition for certiorari. The question for the Court’s consideration was whether contractors bidding on government projects have a First Amendment right to be free from retaliation when they do not have an existing business relationship with the government.

The Court denied certiorari.

Fourth Amendment/Section 1983/High Speed Chases and Qualified Immunity

In Scott v. Harris, the Court held the officer involved in terminating a high speed chase acted reasonably under the circumstances and was therefore entitled to qualified immunity.

Individuals with Disabilities Education Act

In NYC Bd. Of Educ. v. Tom F, in a 4-4 per curiam decision, the Court affirmed the Second Circuit’s holding that a child need not have previously received special education and related services from the public schools to qualify for tuition reimbursement for a private school placement. 

Section 1983/Attorney’s Fees

In Struhs v Wyner, the Court ruled a Section 1983 plaintiff who obtains a preliminary injunction but who later is denied a permanent injunction seeking virtually identical relief is not a “prevailing party” entitled to recover the attorney’s fees.

PENDING U.S. SUPREME COURT CASES

Commerce Clause

In Department of Revenue of Kentucky  v. Davis, the Supreme Court will decide whether a state violates the dormant Commerce Clause by providing an exemption from its income tax for interest income derived from bonds issued by the state and its political subdivisions, while treating interest income realized from bonds issued by other states and their political subdivisions as taxable to the same extent, and in the same manner, as interest earned on bonds issued by commercial entities, whether domestic or foreign.

NLC joined a brief prepared by the State and Local Legal Center. The case will be decided no later than June 2008.

Due Process

Preemption

In New Hampshire Motor Transport Association v. Rowe, the Supreme Court will determine whether Maine’s regulations governing the delivery of cigarettes to merchants and customers are preempted by the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. Sections 14501(c)(1) and 41713(b)(4)(A).

NLC joined a brief prepared by the State and Local Legal Center. The case will be decided by June 2008.

RECENTLY RESOLVED IN THE LOWER FEDERAL COURTS

Preemption/Air Quality Standards

In Engine Manufacturers Association, et al. v. South Coast Air Quality Management District, the Ninth Circuit Court of Appeals ruled that: (1) the market participant doctrine applies to state and local regulations, and (2) policies relating to internal fleet vehicle purchasing decisions and federal law does not act to preempt the policies.

Preemption/Nutrition Labeling Standards and First Amendment

In New York State Restaurant Association v. New York City Board of Health, the federal district court preempted New York City’ recently enacted menu-labeling ordinance but did not preempt similar ordinances as a general matter.

NLC joined an amicus brief with a coalition of local governments, which the City of San Francisco prepared pro bono.

PENDING IN THE LOWER FEDERAL COURTS

                                   
Americans with Disabilities Act

In Lonberg v. Riverside, the 9th Circuit will address whether an implementing regulation of the Americans with Disabilities Act provides a private right of action for enforcement of the regulation. In the underlying case, the plaintiff, a paraplegic who uses a wheelchair within the City of Riverside sued the City and alleged that its transition plan for existing facilities, including streets and sidewalks, as required by the Act and its implementing regulations, was inadequate.  

The district court entered a permanent mandatory injunction, requiring the City to prepare an “adequate” Transition Plan for existing facilities.

This case is still pending before the 9th Circuit.

First Amendment

In Page v. Lexington County School District One  the 4th Circuit will decide

1)      Whether the methods of communication used by the school board are public fora, entitling the plaintiff to access. The communications methods include an e-mail system used to communicate with both district employees and non-employees; a student interest flyer distribution system; the district’s website; and the PTA’s newsletter.

2)      Whether the “government speech” doctrine allows the school district to distribute materials (and spend public resources) advocating a particular position regarding legislation pending at the state legislature.

The district court ruled in favor of the district. Briefing is on-going with argument expected to take place next year.

FLSA

In Lawrence v. City of Philadelphia, the 3rd Circuit will decide whether Fire Service Paramedics employed by the City are covered by the overtime exemption contained in sections 207(k) and 203(y) of the Fair Labor Standards Act. It is a class action case involving about 250 Fire Service Paramedics.

NLC spearheaded a coalition of organizations to file an amicus brief in the case. The matter is pending.

Preemption/Stormwater Payments to Cities

In City of Cincinnati, Ohio v. United States, the question before the federal district court in Southern Ohio is whether a municipality can bring an action against the federal government for violating a city ordinance requiring the payment of past due service charges for use of the City’s stormwater drainage system.

The parties have been engaged in settlement discussions since spring 2007; those discussions are on-going.

Telecommunications/Section 1983

In Southwestern Bell Telephone d/b/a/ AT&T Texas v. City of Houston, NLC joined the Texas Municipal League and Texas City Attorneys Association in an amicus brief supporting the City of Houston. The brief argued the Complaint failed to adequately allege that the City violated the 1996 Telecommunications Act and even if the Complaint established a cause of action pursuant to the Telecommunications Act, it could not be redressed under Section 1983.

The matter has not yet been set for argument.

Telecommunications/Cell Tower Siting and Section 253

In Sprint v. County of San Diego, the 9th Circuit will decide whether a wireless service provider whose permit to locate a cell tower has been denied under Section 332 of the 1996 Telecommunications Act, can sue under Section 253 of the 1996 Act. The court has also been asked to review its standard for determining when any telecommunications provider has met its burden of persuasion under Section 253 (i.e., what is required for a provider to show a local regulation “may prohibit or have the effect of prohibiting” service). Currently, 9th Circuit precedent holds no actual proof of prohibition is required.

In April 2007, the case was submitted for reconsideration by the original panel, which had held violations of Section 332 can be litigated under Section 253. The panel denied reconsideration but noted that the County could seek rehearing en banc. The County and its amici, including NLC, sought en banc review in June 2007.

It is unclear when a decision will be issued due to the back log in the 9th Circuit.

Telecommunications/Cable Franchising

Briefing has been completed in the 3rd Circuit in ACM v. FCC, the litigation challenging the FCC’s cable franchising Order. The 3rd Circuit will set argument “as soon as practicable,” likely early next year.

PENDING AND RESOLVED IN THE STATE COURTS

Religious Land Use and Institutionalized Person Act

In Greater Bible Way Temple of Jackson v. City of Jackson, MI, the Michigan Supreme Court ruled the City’s decision not to rezone residential property did not violate RLUIPA. A petition for certiorari to the United States Supreme Court is expected from the Greater Bible Way Temple. The Becket Fund is their new counsel.

In a similar case, Town of Foxfield, Colorado v. Archdiocese of Denver, the Colorado Supreme Court reversed its grant of certiorari and let the trial judge’s finding that the Town violated RLUIPA stands.

Zoning and Land Use

In Albuquerque Commons Partnership v City of Albuquerque, the issue is whether a change to a comprehensive plan affects a taking of property that can no longer be developed in the particular manner the owner desires.  Notable in this case is the subsequent successful development of the property under the new comprehensive plan. This case is on appeal to the New Mexico Supreme Court. The case remains pending.