Supreme Court Review for Local Governments: June 2017

photo - Supreme Court Review for Local Governments: June 2017
photo - Supreme Court Review for Local Governments: June 2017
(Getty Images)

In the last month of its term (June), the Supreme Court often issues opinions at a dizzying pace. Below is a very brief summary of the cases decided last month affecting local governments.

When it comes to big cases, the Supreme Court's last term was the quietest in recent memory. For local governments, though, the Court’s term was business as usual. In June, and throughout the term, the Court decided a number of police and First Amendment cases which affect local governments directly and indirectly. Local governments were named parties in a number of cases this term.

In a unanimous opinion in County of Los Angeles v. Mendez, the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The fundamental flaw of the provocation rule is that “it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”

In Murr v. Wisconsin, the Supreme Court concluded 5-3 that no taking occurred where a local ordinance “merged” nonconforming adjacent lots under common ownership, meaning the property owners could not sell one of the lots by itself. This is the first Supreme Court takings case a state or local government has won in at least five years. Justice Kennedy cited the State and Local Legal Center’s amicus brief twice in his majority opinion.

In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court held 7-2 that Missouri violated Trinity Lutheran Church’s free exercise of religion rights when it refused, on the basis of religion, to award the church a grant to resurface its playground with recycled tires. As the policy expressly discriminated against otherwise eligible recipients on the basis of religion, it had to withstand “the most exacting scrutiny.” It did not, because Missouri “offers nothing more than [its] policy preference for skating as far as possible from religious establishment concerns.”

Local governments don’t particularly care that trademarks aren’t government speech. But they do care about the breadth of the government speech doctrine because government speech is not protected by the First Amendment (meaning governments can say what they want, and exclude messages they disagree with). In Matal v. Tam, Justice Alito noted that Walker v. Texas (2005) “likely marks the outer bounds of the government-speech doctrine.” In Walker, the Court held that messages on specialty license plates are government speech. In rejecting the argument that trademarks are government speech, the Court noted that none of the factors present in Walker are present in this case.

In Packingham v. North Carolina, the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. If a statute limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The Supreme Court assumed the statute in this case was content-neutral, but held that it is too broad to withstand even less rigorous intermediate scrutiny.

In Hernandez v. Mesa, the Supreme Court ruled that the lower court erred in granting qualified immunity to a police officer based on facts unknown at the time of the shooting but favorable to the officer. According to the Court, “facts an officer learns after the incident ends — whether those facts would support granting immunity or denying it — are not relevant” to the qualified immunity analysis.

In Ziglar v. Abbasi, the Supreme Court granted a number of high-level federal executive agency officials qualified immunity related to a claim they conspired to violate the equal protection rights of a number of undocumented immigrants held on suspicion of a connection to terrorism after 9/11. Two factors weighed in favor of qualified immunity. First, the alleged conspiracy was between officials in the same branch and department of the government. In antitrust law, no conspiracy can exist between agents from the same legal entity. While the lower courts are split on whether this doctrine applies to the statute at issue in this case, the split indicates the law isn’t clearly established. Second, government officials in this case discussed matters of “general and far-reaching policy,” and such open dialogue should be encouraged.

In Town of Chester v. Laroe Estates, the Court held that an intervenor must possess standing to intervene in a lawsuit as a matter of right if the intervenor wishes to pursue relief not requested by the plaintiff. Steven Sherman sued the Town of Chester alleging an unconstitutional taking. Laroe Estates, though lacking standing, sought to intervene, claiming it owned the Sherman property. It is unclear whether Laroe Estates can intervene in the lawsuit because it is unclear whether Laroe Estates wanted the damages Sherman requested (damages for Sherman) or damages in its name.

Read about these cases in greater detail here.

Read more stories about legal issues affecting local governments.

About 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.

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