NLC Joins Three Supreme Court Amicus Briefs

September 8, 2017 - (7 min read)

In the summer, the Supreme Court is not in session — but outside stakeholders continue to file briefs in preparation for fall arguments.

Last month, NLC joined three Supreme Court amicus briefs filed by the State and Local Legal Center (SLLC). These three diverse cases covered many facets of local government — though only one concerned a specific city.

Artis v. District of Columbia

The very simple question in Artis v. District of Columbia is: What does it mean for a statute of limitations to “toll” under 28 U.S.C 1367(d)? The SLLC filed a Supreme Court amicus brief agreeing with the District of Columbia’s interpretation of “toll.”

A year after being terminated as a code inspector, Stephanie Artis sued the District of Columbia in federal court  — bringing a number of claims both federal and state. It took the federal district court over two and a half years to rule on her claims. It dismissed her sole federal claim as “facially deficient” and no longer had jurisdiction to decide the state law claims.

28 U.S.C 1367(d) states that statutes of limitations for state law claims pending in federal court shall be “tolled” for a period of 30 days after they are dismissed (unless state law provides a longer tolling period).

While Artis was waiting for the federal district court to rule the three-year statutes of limitations on all her state law claims passed. She waited 59 days to refile her claims in state court after the federal district court dismissed her case.

Was her claim timely? The District of Columbia Court of Appeals held no.

Under the suspension theory, the state statute of limitations freeze on the day the federal suit is filed and unfreeze with the addition of 30 days when the federal lawsuit is dismissed. Under this theory Artis would have about two years to refile her lawsuit in state court.

Under the grace-period theory if the state statute of limitations would have expired while the federal case was pending, a litigant has 30 days from federal court dismissal to refile in state court. Under this theory Artis’s lawsuit in state court is time barred because she waited longer the 30 days to refile in state court.

The SLLC amicus brief, which NLC joined, argues in favor of the grace-period theory. As this case illustrates, local governments are regularly sued in cases involving federal and state law claims. The longer the tolling period the greater the costs and burden are on resource constrained local governments.

Husted v. A. Philip Randolph Institute

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether federal law allows states and local government to remove people from the voter rolls if the state sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years.

While Ohio is being sued in this case twelve other states use a similar process. The SLLC filed an amicus brief in this case, which NLC joined, supporting the state of Ohio.

The National Voter Registration Act (NVRA) says that roll maintenance procedures “shall not result in” people being removed from the polls for failure to vote. The Help America Vote Act modified the NVRA to say that states may remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles.

The Sixth Circuit struck down Ohio’s scheme reasoning that it “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.”

The SLLC amicus brief points out that hundreds, if not thousands, of states and local governments are tasked with registering voters and maintaining voter rolls. Processes vary based on factors including state law and resources; so, states and local governments need clear direction and flexibility regarding what process they may use to maintain voter rolls. The brief points out that while in this case Ohio is being sued for the process it uses to take people off the rolls, states and local governments have been sued for keeping ineligible voters on the rolls.

Christie v. National Collegiate Athletic Association

Anti-commandeering doesn’t come up often, but it has been a prominent issue in the sanctuary jurisdictions litigation. Now, another upcoming case raises similar questions.

In Christie v. National Collegiate Athletic Association New Jersey Governor Chris Christie argues that because the Professional and Amateur Sports Protection Act (PASPA) prohibits the state from repealing laws restricting gambling, it amounts to unconstitutional commandeering. The SLLC, joined by NLC, filed an amicus brief supporting Christie.

PASPA, adopted in 1992, makes it unlawful for states and local governments to authorize gambling.

First, New Jersey amended its constitution to allow some sports gambling. The Third Circuit held that doing so violated PASPA as an “authorization” of gambling — but concluded that repealing restrictions on sports gambling would be okay.

New Jersey then passed a law repealing restrictions on sports gambling. The Third Circuit changed course ruling the repeal violates PASPA. It reasoned that the repeal “authorizes sports gambling by selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling.”

Per the anti-commandeering doctrine, “Congress ‘lacks the power directly to compel the States to require or prohibit’ acts which Congress itself may require or prohibit.” In both cases Christie argued that PASPA unconstitutionally commandeers states in violation of the Tenth Amendment. The Third Circuit concluded PASPA is constitutional reasoning that it “does not command states to take affirmative actions, and it does not present a coercive choice.”

The SLLC amicus brief argues that, regarding sports gambling, the Third Circuit decision leaves states with only one viable option:  freeze bans in place enacted before PASPA. But, “Congress cannot, on the one hand, fail to preempt the field by way of enacting a federal regime for the regulation of sports wagering and, on the other hand, prevent states from taking any meaningful action to revise their laws to reflect constituent opinion.”

Beyond sports gambling, the SLLC amicus brief also argues that “rationale of the Third Circuit’s decision upholding its reading of PASPA would permit Congress to order state and local governments to freeze state and local law . . . on other issues of critical importance,” ranging from issues such as physician-assisted death for the terminally ill to self-driving cars.

Murphy v. Smith

In August, while on recess, the Supreme Court also took the highly unusual step of agreeing to hear a case in the fall. Murphy v. Smith is relevant to cities operating jails.

The Prison Litigation Reform Act (PLRA) states that when an inmate recovers money damages in a confinement conditions case “a portion of the judgment (not to exceed 25 percent)” shall be applied to his or her attorney’s fees award.

The question the Supreme Court will decide in Murphy v. Smith is whether “not to exceed 25 percent” means up to 25 percent or exactly 25 percent.

A jury awarded inmate Charles Murphy about $300,000 in damages relating to an officer crushing his eye socket and leaving him unconscious in a cell without checking his condition. The trial judge awarded Murphy’s attorney about $100,000 in fees and allocated 10 percent of Murphy’s damages award to attorney’s fees (about $30,000).

The Seventh Circuit reversed the trial judge and held that 25 percent of the judgment in favor of Murphy (or about $75,000) must be allocated to attorney’s fees. The Seventh Circuit reached this conclusion, relying on a 2003 Seventh Circuit case raising the same issue, reasoning: “We do not think the statute contemplated a discretionary decision by the district court. The statute neither uses discretionary language nor provides any guidance for such discretion.”

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.