Category: United States Supreme Court

Brief run-down of local government cases before the US Supreme Court this fall

Gary Taylor

Several cases involving local government law are being heard by the US Supreme Court this fall.  The three that are most significant to BLUZ readers are:

Town of Greece v. Galloway

Argument scheduled for November 6, 2013

The Town of Greece, New York, followed the fairly common policy of allowing a person of any or no denomination to conduct an opening prayer at its Town Board meetings.  The Town did not preview or approve the prayer in advance; however, the Federal 2nd Circuit Court of Appeals declared the Town’s practice a violation of the Establishment Clause of the United States Constitution.  The Court’s holding could affect the longstanding prayer practices of many local governments.

Mount Holly Gardens Citizens in Action v. Township of Mount Holly

Argument scheduled for December 4, 2013

The question presented by this case is whether a policy or action (here, a plan to redevelop a low-income minority neighborhood in New Jersey) that disproportionately impacts a protected class of citizens without intentionally discriminating on the basis of race or other factors can give rise to a Fair Housing Act (FHA) claim.  It has long been understood in at least nine federal circuit courts that such claims will stand.  A ruling to the contrary would significantly restrict the types of claims brought under the FHA.

McCullen v. Coakley

Not currently scheduled for oral arguments

The issue is the constitutionality of Massachusetts’s selective exclusion law, which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners. If the Court decides the issue on broad constitutional grounds, the constitutionality of similar buffers for clinics, funerals, political gatherings, and other events could be called into question or even overturned.

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Supreme Court agrees to hear case on prayer at government meetings

Gary Taylor

by Gary Taylor

Congress shall make no law respecting an establishment of religion….

Yesterday the U.S. Supreme Court agreed to hear the case of Greece, NY v. Galloway, which focuses on the first ten words of the First Amendment, commonly referred to as the Establishment Clause.  The Second Circuit Court of Appeals ruled last year that the Establishment Clause was violated when the Greece Town Board repeatedly used Christian clergy to conduct prayers at the start of its public meetings. The decision created split with other appeals courts that have upheld prayer at public meetings.  This split among the appeals courts led to the Supreme Court taking the case.  The Court will hear the case in its next term, which begins in October. Its decision should come in the spring of 2014, and could have broad implications for public schools and public events.

Analysis from Scotusblog is here.

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US Supreme Court validates FCC’s shot clock ruling for local decisions on cell tower permits

Gary Taylor

by Gary Taylor

City of Arlington, Texas v. Federal Communications Commission
(U.S. Supreme Court, May 20, 2013)

This case was previously discussed in this blog here.  On Monday, the U.S. Supreme Court issued its opinion, which effectively validates the FCC’s shot clock declaratory ruling.  A summary of the Court’s opinion:

The Federal Telecommunications Act (FTA) requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the FTA, the Federal Communications Commission (FCC) issued a Declaratory Ruling (the shot clock) concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, argued that the Commission lacked authority to interpret the language “within a reasonable period of time” because doing so amounted to determining the jurisdictional limits of its own authority – a task exclusively within the province of Congeress. The Fifth Circuit Court of Appeals applied precedent from the case of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the FTA’s broad grant of regulatory authority empowered it to adopt the Declaratory Ruling.

In a 6-3 decision, the U.S. Supreme Court affirmed the Fifth Circuit.  Writing for the majority, Justice Scalia found no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdiction—but not to prescribe how they decide those cases. For agencies charged with administering congressional statutes, however, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is beyond their authority and can be struck down by a court.  Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. If, however the statute is silent or ambiguous, the court must defer to the administering agency’s construction of the statute so long as it is permissible. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court rejected Arlington’s contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The case does not implicate any notion of federalism: The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. In this case, the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency’s interpretation of “reasonable period of time” at issue was promulgated in the exercise of that authority.

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SCOTUSblog recaps this week’s Supreme Court arguments

Gary Taylor

SCOTUSblog provided good previews of this week’s oral arguments, discussed in this blog on Tuesday, and a post-argument recap of the St. Johns Water Management takings case.

Koontz v. St. Johns Water Management preview
Koontz v. St. Johns Water Management recap of arguments

City of Arlington v. FCC preview

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This week at the U.S. Supreme Court

Gary Taylor 1 Comment

This is an important week for land use at the U.S. Supreme Court.  On Wednesday the Court will hear arguments in the case of City of Arlington, TX v. Federal Communications Commission, a Federal Telecommunications Act case that was discussed previously in this blog. For the Oyez Project summary of the case go here.

Another case with potentially much broader implications is being argued today.  That case is Koontz v. St. Johns River Water Management Authority.  The Oyez Project summary is here.  An article from the Orlando Sentinel can be found here.  As a University of Florida law professor aptly stated in the Orlando Sentinel article, the case “doesn’t really reduce itself very well for a newspaper article.”  The essential facts:  The landowner sought permits to prepare his land for development by filling in wetlands. He was told by the St. Johns River Water Management District that he could build on about 3 acres of the parcel if he left the rest of the property alone and paid around $10,000 to restore some wetlands in a state-owned wildlife preserve nearby.  He rejected the second part of that offer and sued St. Johns when it denied his requests for a development permit, arguing that the it had stripped his land of much of its value as a result of the denial. He won in state court and won again when the district took the case to an appeals court. Then, last year, the Florida Supreme Court sided with the water district. (For the lawyers, and non-lawyer land use law fanatics among you, the Florida Supreme Court case can be accessed here).

The U.S. Supreme Court certified the following legal questions:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan u. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and
2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

Potentially at stake is the practice of requesting developers to pay for off-site improvements as a condition of development approval.  Also raised is the question of whether decisions made during the pre-permit negotiation phase can give rise to takings claims.

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US Supreme Court says no bright-line exception to the Takings Clause for temporary flooding caused by Corps action

Gary Taylor

by Gary Taylor

Arkansas Game and Fish Commission v. United States
(U.S. Supreme Court, December 4, 2012)

The Arkansas Game and Fish Commission owns a wildlife management area along the Black River that that is forested with multiple hardwood oak species and serves as a venue for recreation and hunting. In 1948, the U. S. Army Corps of Engineers constructed the Clearwater Dam upstream from the management area and adopted the Water Control Manual, which sets seasonally varying rates for the release of water from the dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the management area’s peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the management area, and opposed the Corps’ proposal to make the temporary deviations part of the manual’s permanent water-release plan. After evaluating the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.

The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims’ entered a $5.8 million judgment in favor of the Commission; however, this judgment was reversed by the Court of Appeals. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is “permanent or inevitably recurring.”

The U.S. Supreme Court disagreed.  Citing back to Penn Central the Court noted that takings claims most frequently turn on situation-specific factual inquiries, as opposed to bright-line legal tests. The Court cited its own cases that affirmed that government-induced flooding, and seasonally recurring flooding, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. None of the Court’s previous decisions authorizes a blanket temporary-flooding exception to the Court’s Takings Clause jurisprudence.  The Court interpreted The Corp’s primary argument as being that reversing the Court of Appeal’s decision risks disrupting public works dedicated to flood control. While the public interests in this case are important, the Court did not consider them to be categorically different from the interests at stake in the many other Takings Clause cases in which the Court has rejected similar arguments.  The Court declined to address the Corps alternative argument that damage to property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause because it was first tendered at oral argument and not aired in the courts below.

Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding it did not address other factors relevant to the takings inquiry, such as the degree to which the invasion is intended or is the foreseeable result of authorized government action. the character of the land at issue, the owner’s “reasonable investment-backed expectations” regarding the land’s use, and the severity of the interference. Thus, remand to address these issues was warranted.

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Supreme Court to address FCC “shot clock” for local governments on cell tower applications (sort of)

Gary Taylor

Last month the US Supreme Court agreed to hear two cases concerning the FCC’s “shot clock” (previous blogposts on the shot clock are found here) which set time limits on local governments for deciding on zoning requests for cell towers: 90 days for collocations (placing antennas on existing towers) and 150 for all other applications.  Actually the cases don’t directly address the shot clock question.  As you know, law is complicated!

The cases are similar so only one will be explained here.  In Arlington v. FCC the city of Arlington, Texas filed suit claiming that the FCC could not set the shot clock time limits because the FCC cannot determine its own power under the Federal Communications Act. When Congress passed the Act, it granted a certain amount of power to the FCC to enforce and define the rules under the Act, but the city of Arlington argued that setting these specific time limits went too far, because it ran contrary to the provision in the Telecommunications Act that leaves the zoning permitting process in the hands of the local government.

Here is the complicated part.  The case went before the Federal Fifth Circuit Court of Appeals.  The FCC argued that under the long-standing Chevron doctrine (arising from the case of Chevron U.S.A. v. Natural Resources Defense Council) courts must always defer to an agency’s interpretation of a law so long as the interpretation is reasonable and “permissible.” The city of Arlington countered that the Supreme Court has never determined whether the Chevron doctrine applies to situations where the agency is venturing to define the reach of its own jurisdiction under a particular law. The Fifth Circuit sided with the FCC and deferred to the agency’s interpretation that the FCC had the authority to set time limits on local governments (having the effect of affirming the declaratory ruling creating the shot clock). Arlington appealed to the Supreme Court, which agreed to hear the case exclusively to answer whether the Chevron doctrine applies in this situation. In other words, the Supreme Court is not deciding on the legality of the shot clock itself. It is deciding whether a federal court must defer to the FCC’s interpretation that the FCC has the authority to institute the shot clock.  If the Court determines that courts must give deference to the agency’s interpretation of the Telecommunications Act on this issue it will, in effect, preclude this and future challenges.

Oral arguments are scheduled for January 16.

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US Supreme Court finds rational basis for Indianapolis special assessment action

Gary Taylor

by Gary Taylor

Armour, et al. v. City of Indianapolis
(US Supreme Court, June 4, 2012)

For decades, Indianapolis (City) funded sewer projects using Indiana’s Barrett Law, which permitted cities to apportion a public improvement project’s costs equally among all abutting lots. Under that system, a city would create an initial assessment, dividing the total estimated cost by the number of lots and making any necessary adjustments. Upon a project’s completion, the city would issue a final lot-by-lot assessment. Lot owners could elect to pay the assessment in a lump sum or over time in installments. After the City completed a particular sewer project, it sent affected homeowners formal notice of their payment obligations. Of the 180 affected homeowners, 38 elected to pay the lump sum. The following year, the City switched from the Barrett Law method of financing and adopted the Septic Tank Elimination Program (STEP),which financed projects in part through bonds, thereby lowering individual owner’s sewer-connection costs. In implementing STEP, the City’s Board of Public Works enacted a resolution forgiving all assessment amounts still owed pursuant to Barrett Law financing. The 38 homeowners who elected to pay their assessments in a lump sum on the prior year’s project received no refund, while homeowners who had elected to pay in installments were under no obligation to make further payments. The 38 homeowners who paid the lump sum asked the City for a refund, but the City denied the request. Thirty-one of these homeowners brought suit in Indiana state court claiming that the City’s refusal violated the Equal Protection Clause of the US Constitution. The trial court granted summary judgment in favor of the homeowners, and the State Court of Appeals affirmed. The Indiana Supreme Court reversed, holding that the City’s distinction between those who had already paid and those who had not was rationally related to its legitimate interests in reducing administrative costs, providing financial hardship relief to homeowners, transitioning from the Barrett Law system to STEP, and preserving its limited resources.  The homeowners appealed to the US Supreme Court.

The Supreme Court held that the City had a rational basis for its distinction and thus did not violate the Equal Protection Clause. The City’s distinction does not violate the Equal Protection Clause as long as “there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” and the “burden is on the one attacking [the classification] to negative every conceivable basis which might support it.” The distinction between the homeowners who already paid their assessments and those who did not does not involve a fundamental right or suspect classification. Its subject matter is local, economic, social, and commercial. It is a tax classification, and there was no claim that the City has discriminated against out-of-state commerce or new residents.

Administrative concerns can ordinarily justify a tax-related distinction, and the City’s decision to stop collecting outstanding Barrett Law debts finds rational support in the City’s administrative concerns. After the City switched to the STEP system, any decision to continue Barrett Law debt collection could have proved complex and expensive. It would have meant maintaining an administrative system for years to come to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debtors and bringing legal action. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding further administrative costs, namely the cost of processing refunds. And limiting refunds only to the homeowners in the subject project would have led to complaints of unfairness, while expanding refunds to the apparently thousands of other Barrett Law project homeowners would have involved an even greater administrative burden. Finally, the rationality of the distinction draws support from the fact that the line that the City drew—distinguishing past payments from future obligations—is well known to the law.

The homeowners further argued that administrative considerations alone should not justify a tax distinction lest a city justify an unfair system through insubstantial administrative considerations. Here it was rational for the City to draw a line that avoided the administrative burden of both collecting and paying out small sums for years to come. Petitioners have not shown that the administrative concerns are too insubstantial to justify the classification.

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US Supreme Court says ethics laws do not violate First Amendment speech rights

Gary Taylor

by Gary Taylor

Nevada Commission on Ethics v Carrigan
(United States Supreme Court, June 13, 2011)

The Nevada Commission on Ethics administers and enforces Nevada’s Ethics in Government Law, Nev. Rev. Stat. §281A.420(2), which requires public officials to recuse themselves from voting on, or advocating the passage or failure of, “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by…his commitment in a private capacity to the interests of others,” which includes a “commitment to a [specified] person,” such as a member of the officer’s household or the officer’s relative, or “any other commitment or relationship that is substantially similar.”

In 2005 the Commission investigated Michael Carrigan, an elected member of the Sparks, Nevada city council, who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under the “any other commitment or relationship that is substantially similar” catchall provision of the Ethics in Government Law.  The Commission censured him for failing to abstain from voting on the project, but did not impose a fine on him because the violation was not willful (the Sparks city attorney had advised Carrigan that disclosing the relationship with his campaign manager would satisfy his obligation under the law). Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment. The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech, and that the law’s catchall definition was unconstitutionally overbroad.

The United States Supreme Court disagreed with the Nevada Supreme Court. The Court found restrictions on legislators’ voting are not restrictions on legislators’ protected speech. A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. He casts his vote “as trustee for his constituents, not as a prerogative of personal power.” Moreover, voting is not a symbolic action, and the fact that it is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech. Even if the mere vote itself could express depth of belief (which it cannot), the Court noted that in previous cases it had rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.

The Court found support for its decision in “early congressional enactments,” which offer “contemporaneous and weighty evidence of the Constitution’s meaning.” Within 15 years of the founding, both the United States House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding. “[A] ‘universal and long-established’ tradition of prohibiting certain conduct creates ‘a strong presumption’ that the prohibition is constitutional.” The notion that Nevada’s recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States, most of which have some type of recusal law.

The Court also found that laws that prohibit a legislator who has a conflict from advocating its passage or failure are also valid. If it is constitutional to exclude an elected official from voting, then his exclusion from advocating during a legislative session is similarly constitutional.  Such speech limitations are reasonable time, place, and manner limitations.

The U.S. Supreme Court reversed and remanded the case.

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