State & Local Government Law Prof Blog

Local Governments and the Global Environment

Professor Victor Flatt has an excellent new article, "Act Locally, Affect Globally:  How the Structure of Local Government Makes it the Best Arena for Engagement and Work with the Private Sector to Control Environmental Harms."  He argues that more attention needs to be given to the role of local governments in addressing large-scale environmental harms, not only because of substantial local activity relating to climate change, but also because of local governments' capacity to develop social norms that can be internalized by decision makers situated locally yet responsible for activities of private corporations that operate well beyond local boundaries.

Public Records and Football Skirmishes

A divided Pennsylvania Supreme Court this week issued its opinion in a dispute regarding public access to salary and related information about Penn State University employees including football coach Joe Paterno. 
See Penn State Univ., et al, Aplts v. State Employees Retirement Board - No. 107 MAP 2006. 
The case arose in 2002, when a Harrisburg newspaper sought disclosure of data regarding Paterno's salary level insofar as that information is evident in state employees retirement board records.  The litigation led the court to interpret key aspects of Pennsylvania’s Right to Know Act (RTKA), 65 P.S. §§ 66.1-66.9, specifically the definition of  "public record" as including "any account, voucher or contract dealing with the receipt or disbursement of funds by an agency."

A four-judge majority concluded that the information about Paterno's salary held by the Retirement Board was covered by this definition, even though the information had not been created by the Retirement Board (but was held by the Board and used to determine a future guaranteed payment to Paterno).  Nor was the information exempt from disclosure based on the status of the Retirement Board, common law or statutory fiduciary duties, or federal statutes regulating the financial services industry.  The majority also rejected a claim that the information was exempt from disclosure under a statutory provision stating that public records do not include "any record, document, material, exhibit, pleading, report, memorandum or other
paper, . . . which would operate to the prejudice or impairment of a person's reputation or
personal security.” 

In dissent, Chief Justice Cappy contended that the majority had erred in its threshold analysis, since in his judgment prior case law required that salary information not be deemed to all within the definition of public record until "retirement benefits are computed and paid."   

Federal Role in Supporting Public Education

Professor Goodwin Liu has published important recent articles offering fresh thoughts on why the federal government should provide more substantial support for public education.  In Education, Equality, and National Citizenship, 116 Yale L.J. 330 (2006), he argues that "the most significant component of educational inequality across the nation is not within states but between states," and contends that the "citizenship clause" and section 5 of the Fourteenth Amendment "authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation." In his view, "the citizenship clause guarantee does more than designate a legal status....it obligates the national government to secure the full membership, effective participation, and equal dignity of all citizens in the national community."  For additional writing on this topic by Professor Liu, see Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044 (2006). For responses to Professor Liu's Yale article by Robin West and Carl Kaestle, see the Yale Law Journal Pocket Part Archive. 

English only: Drivers Licenses and Official Languages

The Alabama Supreme Court recently issued an opinion regarding the application of the state's "English only" constitutional provision to drivers license examinations given in multiple languages. Cole v. Riley, 2007 WL 3051051 (Ala. 2007). 

AL CONST Amend. No. 509 provides:

English is the official language of the state of Alabama. The legislature shall enforce this amendment by appropriate legislation. The legislature and officials of the state of Alabama shall take all steps necessary to insure that the role of English as the common language of the state of Alabama is preserved and enhanced. The legislature shall make no law which diminishes or ignores the role of English as the common language of the state of Alabama.

Any person who is a resident of or doing business in the state of Alabama shall have standing to sue the state of Alabama to enforce this amendment, and the courts of record of the state of Alabama shall have jurisdiction to hear cases brought to enforce this provision. The legislature may provide reasonable and appropriate limitations on the time and manner of suits brought under this amendment.

The Court assumed, without deciding, that the Constitutional amendment was self-executing.  A split court (in an opinion by the Chief Justice with two justices concurring and two concurring specially) concluded that the plaintiff had failed to demonstrate that offering drivers licenses in multiple languages had diminished or eroded English as Alabama's common language or that English-only testing was required in order to "preserve and enhance" English as the state's common language. 

Vermont Auto Emissions Regulations Upheld in Face of Preemption Challenge

In Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, the federal district court of the district of Vermont held that states other than California may adopt California's standards for controlling greenhouse gases from cars, without running afoul of federal preemption doctrine.  The Clean Airt Act section 209(a) requires the EPA to waive preemption under certain circumstances, and states other than California may adopt such standards where waivers have been granted.  The Vermont standards were sufficiently unrelated to fuel economy to avoid express preemption, Congress did not intend CAFE (corporate average fuel economy) standards to occupy the field, and the Vermont standards did not impermissibly intrude into the realm of foreign affairs or conflict with foreign policy. 

Local Governments and Immigration

In recnet months, several local governments have  tried to crack down on undocumented immigrants living within their boundaries.  A recent important decision relates to the ordinances adopted by Hazelton, PA, stuck down in Loranzo v. City of Hazelton, PA.  Hazelton had required those living in apartments to secure residency permits (upon a showing that they were citizens or lawful residents), prohibited owners of dwelling units from knowingly renting to illegal immigrants, and barred business entities from hiring or continuing to employ unlawful workers.  The court found that plaintiffs had standing, and rested its decision on preemption, 42 USC 1981, and constitutional grounds.

Garcetti aftermath: free speech and election races

In the aftermath of the U.S. Supreme Court's decision in Garcetti v. Ceballos, caselaw continues to be confusing.  In Murphy v. Cockerell (6th Cir. 2007), two employees of the county property valuation administrator's office faced off in an election for the permanent position of property valuation administrator (the Republican had been appointed as the interim administrator, then moved the Democractic candidate to a back office).  The victorious Republican fired the Democratic contender for her political speech during the election campaign.  The Sixth Circuit held that there was no right to candidacy and concluded that the Democrat could be fired for running, but could not be fired for her political speech during the campaign.  The court concluded that there was no evidence that the Democratic candidate's speech had impeded her ability to perform her duties, and that the Democratic candidate was also not a confidential employee subject to discharge under Elrod-Branti analysis.

Eminent Domain Developments

The Missouri General Assembly has just passed HR 1944, an interesting approach to balancing governmental interests in use of eminent domain powers and private parties' concerns about potential governmental overreaching.  The St. Louis Post-Dispatch highlights key features, including special protections for farms, requirements that governments pay certain moving expenses, requirements that governments pay homeowners 25% more than property would command on the open market, and payment of enhanced "heritage value" (based on number of years owned) for homeowners and businesses with fewer than 100 employees.  The legislation also calls for creation of the position of ombudsman by the office of public counsel to assist citizens and document the use of the eminent domain power.

Transportation Development Districts: Missouri Report

A recent news report from St. Louis, MO reports the success of transportation development districts. The Post-Dispatch describes the system as follows:

"On some store receipts, the tax is a line item called TDD, which stands for transportation development district. It's a tax most shoppers don't know they're paying. But they are, at 37 or more shopping centers in St. Louis and nearby counties, including the Promenade in Brentwood, WingHaven in O'Fallon, Mo., and several on Highway 141 in Fenton....The tax varies from one-eighth to 1 percent on every dollar spent on retail goods within these districts. Revenue pays for transportation-related items such as traffic signals, wider roads, parking spaces and sidewalks."

This news report follows a recent report by the Missouri State Auditor. In her press release on the subject Auditor McCaskill stated:

"TDDs are initiated by the filing of a petition in the circuit court of the county where the proposed district is located.  For TDDs established as of December 31, 2004, 96 percent of the petitions initiating their establishment were filed by the owners of the property located within the proposed district.  In many instances, it appears only a single property owner/developer petitioned for the creation of a district.   

Although the Transportation Development District Act was enacted in 1990, the first TDD was not established until 1997, apparently the result of statutory changes the General Assembly made that year.  These changes have resulted in a dramatic increase in the number of TDDs established.  As of December 31, 2004, 69 TDDs had been established in the state.  This significant growth has continued in 2005, with 18 additional TDDs being established as of October 2005.

In a survey of the 69 districts, officials of 68 of the TDDs reported total estimated transportation project costs of over $578 million.  In addition, 62 of the 69 TDDs reported total estimated revenues of over $787 million would be collected during the lives of the respective TDDs.  All of the districts established as of December 31, 2004, have imposed a sales tax, with rates ranging from one-eighth of one percent to one percent on retail items sold within the districts' boundaries.  As a result, all retail establishments located within a TDD charge a higher total sales tax than the retail establishments that lie outside the district's boundaries."

She criticized the system as lacking in accountability and transparency.  Her full report is available for download.

New Generation of Tax Revolts

The Christian Science Monitor has an interesting article on the latest in property tax revolts.  Most of the activity appears to be in states where property values have increased rapidly (as was true at the time that Proposition XIII passed in California back in the 1970's).  Here's the short list of current highlights from the article:

• Idaho: Lawmakers are mulling over eight bills limiting property taxes. One would revise the "homestead exemption," which now keeps the first $50,000 of a home's value off the tax rolls. The bill boosts that to $100,000.

• South Carolina: Having capped the rise in property tax assessments at 3 percent per year until a home is sold or improved, the legislature is now considering a rollback of property taxes, replacing them with a hike in the sales tax.

• Georgia: Many lawmakers are backing legislation that would put a similar 3 percent cap into the state constitution.

• Nevada: Protesters are gathering signatures for a citizen initiative that would require the state to refund taxpayers if state revenues rise faster than inflation. They also want to cap the growth in property tax bills at 1 percent per year.

• Connecticut: After an uproar over massive assessment hikes for lakefront properties around the state, state officials have ordered cities and towns that have seen property tax spikes to calibrate disputed assessments to "comparable" properties, based on records of recent sales.

Kelo, Eminent Domain, and Bond Ratings

Fitch Ratings has issued a short report warning that legislation to curtail eminent domain powers of local governments could adversely affect municipal credit.  In summary, the report states:

"If these efforts prove successful and eminent domain powers are restricted to a significant degree, Fitch Ratings believe municipal credit quality could be restrained or negatively affected.  By impairing a state or local government's efforts toward economic development, such legislation, if enacted, may limit opportunities for credit quality improvement and rating upgrades.  Moreover, Fitch believes that restrictive legislation has the potential to contribute to a diminution of credit quality over a longer term, in that the proposed laws limit a state or local government's ability to respond to economic blight or weakened conditions."

No Child Left Behind

Today's New York Times reports that 20 states have sought waivers from certain aspects of the federal No Child Left Behind Act.  The requests seek to measure individual student progress over time rather than focusing so heavily on groups of students. The proposals would allow significant reductions in numbers of schools deemed failing under current procedures. The US Education Department issued its most recent statement on accountability requirements on February 21.For more on No Child Left Behind, take a look at the National Council of State Legislatures website,   

Oregon Supreme Court Upholds Measure 37

In 2004, Oregon voters passed "Measure 37", ORS 197.352 (set out in full in the continuation of this post), which requires government to either compensate landowners for reductions of real property fair market value due to certain "land use regulation[s]" or modify, remove, or not apply such regulations.  The measure was challenged on state and federal constitutional grounds in the Oregon courts.  Although the lower court had found the provisions unconstitutional, the Oregon Supreme Court in a unanimous en banc decision yesterday reversed and upheld Measure 37as permissible under both state and federal constitutions.  MacPherson v. Department of Administrative Services, (CC No. 05C10444; SC S52875).

The court summarized its conclusions as follows:  "[W]e conclude that (1) plaintiffs' claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution."

This is an exceptionally important case which may trigger more reactions against land use regulation around the country.  Because it effectively applies an eminent domain "just compensation" requirement to land use plans and requirements, it resonate with public unease in the aftermath of the Kelo decision which upheld the use of eminent domain in some circumstances relating to economic development.

Measure 37, codified at ORS 197.352, provides:

"The following provisions are added to and made a part of ORS chapter 197:

"(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.

"(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.

"(3) Subsection (1) of this act shall not apply to land use regulations:

"(A) Restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. This subsection shall be construed narrowly in favor of a finding of compensation under this act;

"(B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;

"(C) To the extent the land use regulation is required to comply with federal law;

"(D) Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions; or

"(E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.

"(4) Just compensation under subsection (1) of this act shall be due the owner of the property if the land use regulation continues to be enforced against the property 180 days after the owner of the property makes written demand for compensation under this section to the public entity enacting or enforcing the land use regulation.

"(5) For claims arising from land use regulations enacted prior to the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the owner of the property, whichever is later. For claims arising from land use regulations enacted after the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criteria, whichever is later.

"(6) If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this act, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this act in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation.

"(7) A metropolitan service district, city, or county, or state agency may adopt or apply procedures for the processing of claims under this act, but in no event shall these procedures act as a prerequisite to the filing of a compensation claim under subsection (6) of this act, nor shall the failure of an owner of property to file an application for a land use permit with the local government serve as grounds for dismissal, abatement, or delay of a compensation claim under subsection (6) of this act.

"(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to [sic] apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.

"(9) A decision by a governing body under this act shall not be considered a land use decision as defined in ORS 197.015(10).

"(10) Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this act. Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this act. If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.

"(11) Definitions - for purposes of this section:

"(A) 'Family member' shall include the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.

"(B) 'Land use regulation' shall include:

"(i) Any statute regulating the use of land or any interest therein;

"(ii) Administrative rules and goals of the Land Conservation and Development Commission;

"(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;

"(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and

"(v) Statutes and administrative rules regulating farming and forest practices.

"(C) 'Owner' is the present owner of the property, or any interest therein.

"(D) 'Public entity' shall include the state, a metropolitan service district, a city, or a county.

"(12) The remedy created by this act is in addition to any other remedy under the Oregon or United States Constitutions, and is not intended to modify or replace any other remedy.

"(13) If any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect."

Measure 37 defines the term "land use regulation" as follows:

"(i) Any statute regulating the use of land or any interest therein;

"(ii) Administrative rules and goals of the Land Conservation and Development Commission;

"(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;

"(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objections; and

"(v) Statutes and administrative rules regulating farming and forest practices."

Smart Growth/Smart Code

For those interested in how local governments can regulate land use in the current age, there are many resources regarding "Smart Growth."  A copy of the "Smart Code" is now available for free from "Placemarkers.com".  Other resources on smart growth include the federal EPA and Smart Growth America. 

Report on election reform

Electionline.org has just issued its report on changes in state election laws since the Help America Vote Act of five years ago. The report, "What's Changed, What Hasn't and Why:  Election Reform 2000-2006" details ways in which some states have failed to comply with HAVA requirements (NY has yet to create a statewide database and has difficulties with lever machines; Ohio legislators have yet to agree on voter identification requirements, for example). 

Other major findings are as follows:

1.  Concerns about electronic voting machines have been growing rather than falling. Half the states not require paper audit trails or require paper ballots (and other states are considering similar requirements).

2.  A number of states require all voters to present identificaiton before voting (twice as many as in 2000).

3.  Statewide voter registration databases vary in function, capability, and design (and are not complete everywhere).

4.  Provisional ballots are now required nationwide, but counting rules vary and some states require those casting provisional ballots to be in the appropriate precinct.

The report also indicates that the major action on election reform is now taking place in the states and that debate continues on such matters as early and absentee voting, rights of ex-felons to vote, and centralized voting stations versus neighborhood precincts.

Katrina Post-Mortem

For those who've missed it, the Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina is now available on-line.  Titled "A Failure of Initiative," it provides a sobering portrait of all that went wrong.  Featured findings include the following:

1.  The accuracy and timeliness of National Weather Service and National Hurricane Center forecasts prevented further loss of life.

2.  The Hurricae Pam exercise reflected recognition by all levels of government of the dangers of a category 4 or 5 hurricane striking New Orleans.

3.  Levees protecting New Orleans were not built for the most severe hurricanes.

4.  The failure of complete evacuations led to preventable deaths, great suffering, and further delays in relief.

5.  Critical elements of the National Response Plan were executied late, ineffectively, or not at all.

6.  DHS (Department of Homeland Security) and the states were not prepared for this catastrophic event.

7.  Massive communications damage and a failure to adequately plan for alternatives impaired response efforts, command and control, and situational awareness.

8.  Command and control was impaired at all levels, delaying relief.

9.  The military played an invaluable role, but coordination was lacking.

10. The collapse of local law enforcement and lack of effective public communications led to civil unrest and further delayed relief.

11. Medical care and evacuations suffered from a lack of advance preparations, inadequate communications, and difficulties coordinating efforts.

12.  Long-standing weaknesses and the magnitude of the disaster overwhelmed FEMA's ability to provide emergency shelter and temporary housing.

13.  FEMA logistics and contracting systems did not support a targeted, massive, and sustained provision of commodities.

14.  Contributions by charitable organizations assisted many in need, but the American Red Cross and others faced hallenges due to the size of the mission, inadequate logistics capacity, and a disorganized shelter process.

There's lots of blame to go around.

It's time to prepare for the 2006 Hurricane Season.  Predictions from Dr. William Gray of Colorado State University, issued in December, suggest that the probability for at least one major (category 3-4-5) hurricane landfall is as follows in the specified coastal areas: (a) entire US coastline (81% compared to 52% average for the last century; (b) U.S. East Coast including Peninsula Florida (64% compared to the average for the last century of 31%); (c) Gulf Coast from the Florida Panhandle west to Brownsville TX (47% compared to the average for the last century of 30%); and (d) above average landfall risk in the Carribbean. He anticipates a total of 5 intensive hurricanes (compared to 9 in 2005), and "net total cyclonic activity" of 195 (compared to 263 in 2005).

Dr. Gray's next prediction is due in early April.  Stay tuned.

Governments' roles in assuring net access

Stateline has a good undate on recent developments involving states and local governments that have sought to become involved in assuring net access for their citizens. 

To some, net access is a utility and governments have a role in assuring that everyone who wants it has ready access, particularly in rural areas where some may go unserved.  Kentucky has been a leader in this area through its "ConnectKentucky" program. 

Several cities have been leaders in attempting to provide city-wide wireless service--Philadelphia, and more recently Tempe, and San Francisco among others.

Stateline summarizes the interesting history of Philadelphia's efforts:

"In 2004, Philadelphia’s plan to become the first major urban area to propose a city-wide wireless system met resistance from state lawmakers, who introduced a bill to place strict limitations on any municipality's ability to provide a network.

After a heated debate, a law was passed that grandfathered in Philadelphia's proposal but required other Keystone State localities to consult the region’s established telecom companies and allow them 14 months to offer high-speed Internet service – “the right of first refusal.”

The city, in the form of a nonprofit called Wireless Philadelphia, partnered with service provider EarthLink to offer far-reaching inexpensive access. Philadelphia's plan intends to provide an affordable high-speed system for the whole city, including its low-income residents, as well as a unified network for city government and first-responders, according to Bernadine Hawes, a legislative assistant for Pennsylvania Rep. W. Curtis Thomas, past vice-chairman of the National Conference of State Legislature’s Internet caucus."

Stateline also notes that:

"By 2005, 14 states had laws restricting municipalities’ efforts to deploy their own public communications; half of those laws directly apply to the broadband technology. Cities in Arkansas, Florida, Missouri, Minnesota, Nebraska, Nevada, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin face strict barriers to entry through administrative and legal hurdles, according to the American Public Power Association."

Pew's Program on the Internet and American Life has a wealth of resources, including resources on e-government.

FDA Final Rule: Prescription Drug Labeling

The Food and Drug Administration issued a final rule on drug product labeling last week (January 24).  In the preamble, the agency goes to great lengths to assert that its decisions on what needs to be included in drug labels preempts state law:  "FDA believes that under existing preemption principles, FDA approval of labeling under the act, whether it be in the old or new format, preempts conflicting or contrary State law."  At 71 Fed. Reg. 3934 and following, it goes into detail about arguments made in past amicus briefs by the federal Justice Department.  It argues that "State law requirements can undermine safe and effective use" of drugs, by creating pressure on drug manufacturers to provide information on "speculative risks" and accordingly to "limit physician appreciation of potentially far more significant contraindications and side effects." 

The FDA asserts that "at least the following claims would be preempted by its regulation of prescription drug labeling:  (1) Claims that a drug sponsor breached an obligation to warn by failing to put in Highlights or otherwise emphasize any information the substance of which appears anywhere in the labeling; (2) claims that a drug sponsor breached an obligation to warn by failing to include in an advertisement any information the substance of which appears anywhere in the labeling, in those cases where a drug's sponsor had used Highlights consistent with FDA draft guidance regarding the "brief summary" in direct-to-consumer advertising... (3) claims that a sponsor breached an obligation to warn by failing to include contraindications or warnings that are not supported by evidence that meets the standards set forth in this rule including S 201.57(c)(5) (requiring that contraindications reflect "[k]nown hazards and not theoretical possibilities") and (c)(7); (4) claims that a drug sponsor breached an obligation to warn by failing to include a a statement in labeling or in advertising, the substance of which had been proposed to FDA for inclusion in labeling, if that statement was not required by FDA at the time plaintiff claims the sponsor had an obligation to warn (unless FDA has made a finding that the sponsor withheld material information relating to the proposed warning before plaintiff claims the sponosr had the obligation to warn); (5) claims that a drug sponsor breached an obligation to warn by failing to include in labeling or in advertising a statement the substance of which FDA has prohibited in labeling or advertising; and (6) claims that a drug's sponsor breached an obligation to plaintiff by making statements that FDA approved for inclusion in the drug's label (unless FDA has made a finding that the sponsor withheld material information relating to the statement).

The FDA also asserts that "Preemption would include not only claims against manufactuers as described above, but also against health care practitioners for claims related to dissemination of risk information to patients beyond what is included in the labeling).

The FDA also stated that there was no need to apply the interpretative strategies described in Executive Order 13132 on Federalism (which requires agencies to "construe... a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute") since the agency had determined that federal law "preempts State law because the exercise of State authority conflicts with the exercise of Federal authority under that statute."

This sweeping approach has drawn concern from the National Conference of State Legislatures which views the action as a usurpation of Congressional and state prereogatives.  According to the Washington Post the FDA recognizes that the regulation's preamble "does not have the weight of law or formal regulation, [but] they hope state judges will accept their position."

State courts will at the least have to become even more informed about the nuances of federal preemption doctrine.

Congress, Kelo, and the Congressional Research Office

I had the chance to spend some of today speaking to a North Carolina legislative committee about the Kelo case and how it might impact NC law.  It's still amazing to me that the press has spun the story in such a fashion that many people don't have a full appreciation for the facts and circumstances.  New London, CT  had lost population to the point that it was down to the level of 1920.  It had lost federal jobs (1500).  It had followed processes, etc.  On the other hand, a small number of property owners didn't want to lose long-time housing (understandable).  My own sense (and experience) is that local governments don't use eminent domain without a lot of soul-searching. 

As some readers may be aware, the United States House of Representatives voted in November (HR 4128) to prohibit state and local activities of the following sort:

Section 2(a)  "No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic development or over property that is subsequently used for economic development, if that State received Federal economic development funds during any fiscla year in which it does so."

Section 2(b) "A violation of subsection (a) by a State or political subdivision shall render such State or political subdivision ineligible for any Federal economic development funds for a period of 2 fiscal years following a final judgment on the merits by a court of competent jurisdiction that such subsection has been violated."

Section 8 of the bill defines economic development as:  "taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health."

The bill provides a private right of action, and requires the state or local government "to show by clear and convincing evidence that the taking is not for economic development."

All this of course raises fascinating questions about federalism among other things.  The latest wrinkle, however, is the way that analysis of the bill has been tucked away from public view.  US Law Week reported in late December that a Congressional Research Office analysis had been circulating to legislators widely but on a much more limited basis to members of the public (that is, those of us whom Congress is supposedly trying to protect).  Readers may be aware that the important studies by the Congressional Research Office have in the last several years (read.. during the current administration) been tucked away from public view most of the time (again, though we pay for this important work).

Happily some very good folks in various non-profit groups and libraries have made it a point to post selected Congressional Research Office reports on their websites (though members of Congress who used to do this have had that opportunity limited).  Happily, too, the report on the federal "Kelo" legislation is available through one such group:  www.opencrs.com  Take a look at this important analysis.

If you're so inclined, send a note of thanks to the folks at the Center for Democracy & Technology who have made it a point to make Congressional Research Reports available "for the People" (that's us).  The opencrs.com site also lists others who are making similar efforts to keep ideas and analysis free.  Thanks to the National Council for Science and the Environment, the Federation of American Scientists, Thurgood Marshall Law Library at the University of Maryland School of Law, and the National Memorial Institute for the Prevention of Terrorism.

and use the spending power to threaten local and state governments with loss of federal funds for economic development and transportation if said governments did not sharply

More from Manassas

Manassas' ordinance barring extended families as a means of controlling overcrowding (and in-coming immigrants) was repealed after objections from the Washington Post among others.  Glad to see a bad idea bite the dust.  Good for the elected officials (and I imagine their lawyer) in seeing that they needed to reconsider.

Election Issues & Help America Vote Act

It's January 2006 and states should be ramping up for 2006 fall elections.  Here in North Carolina voting machine manufacturer Diebold withdrew from the procurement process after deciding that it would not (or could not) comply with the state's voting integrity requirements.  The Electronic Frontier Foundation had helped defend the state's statute which was passed after 4500 electronic ballots were lost in 2004 due to issues with machines.

Meanwhile, electionline.org reports that the federal Justice Department is preparing to sue the state of New York for its failure to make needed progress in complying with the Help America Vote Act.  Electionline also reports that Virginia Governor Mark Warner will not restore the voting rights of convicted felons before leaving office this month.

In-state tuition rates for children of undocumented immigrants

A growing number of state legislatures have acted on proposals to allow children of undocumented immigrants to qualify for in-state public university tuition.  For a general summary of developments, check out the site of the National Conference of State Legislatures.  California and Texas had been the leaders in allowing such tuition (using slightly different strategies).  California recently was sued by non-resident students who claimed that they should be receiving the same tuition as children of undocumented aliens who by state law are eligible for resident tuition levels if they have lived in the state and graduated from state high schools.  The Massachusetts legislature has just defeated a bill that would have allowed children of undocumented aliens to pay resident tuition. 

Those who favor extending resident tuition rates say that it's critical to provide educational opportunities for a growing part of the population who have great talent and will be a critical part of the future economy.  Those who oppose that policy often say that illegal conduct of undocumented parents shouldn't be rewarded, and that seats should go to children of tax-paying residents.One of the legal questions concerns interpretation of a provision in the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that prohibits states "from providing a post-secondary education benefit to an alien not lawfully present unless any citizen or national is eligible for such benefit."  For more background and updates, check out the NCSL site.

More post-Kelo developments: the legislatures

State legislatures have been acting in the wake of Kelo as well.  The National Conference of State Legislatures is maintaining a running list of related developments. Some actions have involved proposed constitutional amendments, while others have involved statutory modifications.  The Connecticut legislature is among those focusing on this area (since New London is located there).

Meanwhile, Congress has gotten into the act in ways that are likely to raise important federalism issues.  A bill passed the House (HR 4128) in early November, and that bill went on to the Senate.  The GPO summary states:

Private Property Rights Protection Act of 2005 - (Sec. 2) Prohibits any state or political subdivision from exercising its power of eminent domain for economic development if that state or political subdivision receives federal economic development funds during the fiscal year. (Defines "economic development" as taking private property and conveying or leasing it to a private entity for commercial enterprise carried on for profit or to increase tax revenue, the tax base, employment, or general economic health.) Makes a state or political subdivision that violates such prohibition ineligible for any such funds for two fiscal years. Provides that such a state or political subdivision is not ineligible for such funds if it returns all real property that was improperly taken and replaces or repairs any property that was destroyed or damaged.

(Sec. 3) Prohibits the federal government from exercising its power of eminent domain for economic development.

(Sec. 4) Establishes a private cause of action for any private property owner who suffers injury as a result of a violation of this Act. Provides that a state is not immune from any such action in a federal or state court. Places the burden on the defendant to show by clear and convincing evidence that the taking is not for economic development. Sets the statute of limitations for such an action at seven years. Allows the prevailing plaintiff's attorney to obtain reasonable attorney's fees and expert fees.

(Sec. 5) Requires the Attorney General to: (1) compile a list of the federal laws under which federal economic development funds are distributed; (2) provide to each state and publish on a Department of Justice website the text of this Act, a description of the rights of property owners under this Act, and the compiled list of relevant federal laws; and (3) publish such text and description in the Federal Register.

(Sec. 6) Requires the Attorney General to submit an annual report to the House and Senate Judiciary Committees identifying states or political subdivisions that have used eminent domain in violation of this Act, that have lost federal economic developments funds as a result, and/or that returned property to cure a violation.

(Sec. 7) Expresses the sense of Congress that: (1) the use of eminent domain for economic development is a threat to agricultural and other property in rural America; and (2) it is the policy of the United States to promote the private ownership of property and to protect the legal rights of private property owners.

(Sec. 13) Prohibits a state or political subdivision from exercising its power of eminent domain over property of a religious or other nonprofit organization because of the organization's nonprofit or tax-exempt status or any related quality if that state or political subdivision receives federal economic development funds during the fiscal year. Makes a state or political subdivision that violates such prohibition ineligible for any such funds for two fiscal years.

Prohibits the federal government from exercising its power of eminent domain over property of a religious or other nonprofit organization because of the organization's nonprofit or tax-exempt status or any related quality.

(Sec. 14) Requires the head of each executive department and agency to review all rules, regulations, and procedures and report to the Attorney General on their activities to comply with this Act.

(Sec. 15) Expresses the sense of Congress that all precautions should be taken to avoid the unfair or unreasonable taking of property from survivors of Hurricane Katrina for economic development or other private use.

Meanwhile, the Senate adopted an amendment to the FY 2006 spending bill for the Departments of Transportation, Treasury, and Housing and Urban Development that prohibits the use of federal funding for any project that uses eminent domain for a non-public use.  The Senate provision states:

SEC. 726. No funds in this Act may be used to support any Federal, State, or local projects that seek to use the power of eminent domain, unless eminent domain is employed only for a public use: Provided, That for purposes of this section, public use shall not be construed to include economic development that primarily benefits private entities: Provided further, That any use of funds for mass transit, railroad, airport, seaport or highway projects as well as utility projects which benefit or serve the general public (including energy-related, communication-related, water-related and wastewater-related infrastructure), other structures designated for use by the general public or which have other common-carrier or public-utility functions that serve the general public and are subject to regulation and oversight by the government, and projects for the removal of an immediate threat to public health and safety or brownsfield as defined in the Small Business Liability Relief and Brownsfield Revitalization Act (Public Law 107-118) shall be considered a public use for purposes of eminent domain: Provided further, That the Government Accountability Office, in consultation with the National Academy of Public Administration, organizations representing State and local governments, and property rights organizations, shall conduct a study to be submitted to the Congress within 12 months of the enactment of this Act on the nationwide use of eminent domain, including the procedures used and the results accomplished on a state-by-state basis as well as the impact on individual property owners and on the affected communities.

The federalism issues raised by Congress' potential intervention in an area so central to state law are considered in an interesting piece by Bernard Bell of Rutgers. 

Kelo and Eminent Domain Developments

One of the most widely discussed cases of the past U.S. Supreme Court term is Kelo v. City of New London, which upheld the Connecticut city's use of eminent domain powers in connection with economic development in an area along its waterfront.  The case itself seems to follow pretty directly from Berman v. Parker (long-standing precedent regarding urban renewal).  What is more striking is how the facts and the focus are differently perceived by the litigants and by the public after the decision came down.  Were the plaintiffs "holdouts" who were blocking a badly needed effort to help the city get back on its feet?  Was the government taking from A to give to B (another private party)? 

In any event, the battleground has returned to state courts and legislatures.  The Ohio Supreme Court heard arguments today in Norwood v. Gamble, 161 Ohio App.3d 316, 830 N.E.2d 381 (Ohio App.1 Dist., 2005). The case is getting national billing as the first to reach a state high court since the Kelo decision.  It involves a municipality now surrounded by Cincinnati, and an area within the municipality that began as residential but became increasingly commercialized because of the intrustion of the I-71 corridor.  Rookwood, a developer, initially approached the city council development committee with a proposal for redevelopment of the area.  It urged the use of eminent domain powers to acquire properties by the Council declined.  It subsequently acquired all but five parcels in the area.  In 2003 the Council hired a consultant to do an urban renewal study of the area.  The consultant found that the area was no longer viable for single family residential use and that piecemeal development would have a negative effect.  The planning commission recommended that an urban renewal effort be pursued in the area with Rookwood as the developer, pursuant to a plan presented by Rookwood. The Council passed a resolution finding the area to be "deteriorated" (as defined in the local ordinance), designated Rookwood as the developer, and authorized exercise of eminent domain powers in order to clear the area (with Rookwood absorbing all costs of acquisition of the properties not yet purchased).

The appellate court addressed a series of important questions including whether the city had abused its discretion in determining the area to be "deteriorated" or "deteriorating" defined in the local code as:
"An area, whether predominantly built up or open, which is not a slum, blighted or deteriorated area, but which because of incompatible land uses, nonconforming uses, lack of adequate facilities, faulty street arrangement, obsolete platting, inadequate community and public utilities, diversity of ownership, tax delinquency, increased density of population without commensurate increases in new residential buildings and community facilities, high turnover in residential or commercial occupancy, lack of maintenance and repair of buildings, or any combination thereof, is detrimental to the public health, safety, morals and general welfare, and which will deteriorate or is in danger of deteriorating, into a blighted area." The court found no abuse of discretion.

The plaintiffs also argued that land marked by "deteriorating" conditions that had not yet reached the level of "blight" should not be subject to action under the eminent domain power; asserted that the condemnation involved an illegal delegation of public power to a private entity (Rookwood); contended that the finding of "deterioration" was a facade designed to allow Rookwood to pursue private development initiatives, and represented an abuse of the eminent domain power for private gain rather than a "public use." 

Numerous amici have filed their views with the Ohio Supreme Court.  Stay tuned.

The Norwoods are long-time residents now in their 60's, who are holding out against selling their property to a commercial developer which has assembled significant land in the neighborhood. After a study, the municipality decided that it needed to pursue urban renewal in the area

New Orleans Post Katrina

The Brookings Institution has developed an index for tracking reconstruction of New Orleans post Katrina. It seems in some ways things have been getting worse.  Unemployment rates continue to rise, and Brookings reports that 1 in 6 working age adults in the New Orleans metro area were unemployed in November (Mississipi unemployment rates have risen to 9.5).  Such a terrible, slow moving avalanche of a disaster.