Wednesday, November 21, 2007
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
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.
Sovereigns and Servants: Yale Symposium
The Yale Law Journal has an excellent symposium that considers the interplay of local government law and the separation of powers. Professor Heather Gerken's overview essay "Of Sovereigns and Servants" is available from SSRN or at 115 Yale L. J. 2633 (2006). The essay highlights a common issue (correcting imbalance of power between government branches), through differing lenses. At the national level in recent days scholars have often focused on how to tame the overly energetic national executive, while at the local level some have argued for stronger local executives as a means to strengthen weak cities.
Other essays on particular interest that are included in the symposium include Richard Schragger's "Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System," 115 Yale L.J. 2542 (2006) and David Barron's Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 Yale L.J. 2218 (2006)
Tuesday, November 13, 2007
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.
Preemption and tobacco
The United States Supreme Court will hear argument on 11/28/07 in Rowe v. N.H. Motor Transp. Ass'n, a case involving Maine's efforts to gain tax revenue that had been lost to unlicensed retailers and to limit sale of tobacco products to minors, pursuant to state legislation (codified at Me. Rev. Stat. Ann. tit. 22, §§ 1551, 1555-C, and 1555-D (2007)). The legislation directed licensed mail-order retailers to use only delivery services that would ensure that the parties to whom tobacco products are delivered are indeed the purchasers and are of an age to purchase tobacco products legally. Delivery services in Maine are also prohibited from knowingly delivering tobacco products from unlicensed retailers (where knowledge is imputed based on markings on packages or the inclusion of retailers on a list of unlicensed retailers maintained by the state).
The Transport Association and other associations of air and motor carriers challenged the legislation on grounds that it was preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The FAAA prohibits states from enacting laws "related to a price, route, or
service" of a carrier. 49 U.S.C. §§ 14501(c) & 41713(b)(4)(A). The Maine Attorney General argued that Maine's effort to control access by minors to tobacco products was designed to address health and safety concerns, rather than to impose additional economic regulation, and should therefore not be seen as preempted.
The First Circuit concluded that the FAAAA applied, notwithstanding Maine's police power argument. The court also concluded that key aspects of the Maine legislation were "related to" carrier services and had a significant impact on those services. While Maine could punish knowing transportation of contraband tobacco or delivery of prohibited products to minors with actual knowledge, other features of the legislation was preempted. The First Circuit opinion is available at N.H. Motor Transp. Ass'n v. Rowe, 448 F.3d 66 (1st Cir. 2006).
Monday, November 5, 2007
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.
Zoning Basics in an Hour
I recently was asked to present "zoning basics" in 60 minutes to new municipal attorneys attending the yearly International Municipal Lawyers Association Conference in Nashville, TN. For those who face similar teaching challenges, I've attached my manuscript and slide presentation.
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.
State and Local Government in a Federal System (6th Ed) 2007 update
Readers of this blog who use the casebook on which I am a co-author (Mandelker, Salsich, Netsch, Wegner, Stevenson and Griffith, State and Local Govenrment in a Federal System, 6th Edition (Lexis 2007) ) lmay find the attached 2007 update letter of interest.
Excellent New Land Use Blog
Professor Patricia Salkin of Albany Law School has started an outstanding blog on land use law developments: http://lawoftheland.wordpress.com/about/ It's highly recommended.
Returning from Hiatus
I'm returning from a hiatus that has gone on longer than I'd hoped. If some readers of this blog are interested in joining in as affiliated editors, please contact me at firstname.lastname@example.org.
Monday, May 8, 2006
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.
Sunday, May 7, 2006
Legislative Trends and Tensions: Year to Date
State Net Capital Journal's most recent report includes an overview of state legislative trends so far this year. Among the highlights are: Maryland's requirement that major employer pay 8% of wages toward employee health benefits; Massachusetts' universal healthcare program; Washington State's ban on phosphates in dishwashing detergents; South Dakota's near-total ban on abortions; eminent domain amendments post-Kelo; lobbying reform post-Abramoff; limits on disruptions of funerals (such as those created by anti-gay church members from a Kansas church); energy assistance; minimum wages; and use of deadly force to protect homes. Also of note--some states have significant budget surpluses, including Wyoming, Washington and Utah (reported to have better than $1 billion each).
As to tensions: two stories stand out. There is reportedly a deep division within the Virginia legislature regarding funding strategies for major transportation improvements (the Senate wants to pay for them through tax hikes and the House strongly objects). Governor Timothy Kaine is preparing an executive order that would declare police, prisons, and hospitals among other state agencies as "necessities of government" that would continue operating in the event of a budget impass on July 1. Lawmakers and academics disagree on whether the Governor would have power to exercise executive authority in this way. If the Governor acts in this way, various legal challenges are predicted:
"Employees at agencies not deemed essential, for example, could be inclined to ask a court to force Kaine to keep their agency open. Previous situations like this in other states offer little guidance for how a court might respond.
Legal scholars say it is unlikely that any court will order all of government to be either shut down or kept open, and judges are usually unwilling to make judgment calls that are normally left to politicians. A similar stalemate in KENTUCKY in 2004, for instance, left the Bluegrass State without a budget for months. In that case, the courts simply sat on the challenge to the governor's authority until the dispute was resolved in the Legislature. The judge then declared the case moot. (WASHINGTON POST)
Finally, Governor Jeb Bush of Florida had his own tangles with legislative colleagues regarding his proposal to seek voter approval of an expanded voucher programs allowing use of public money to send children to private schools, after a recent Florida Supreme Court decision ruled a 1999 voucher program unconstitutional The Republican-controlled State Senate rejected the proposal by a single vote, and the Republican majority leader (who opposed the measure) was subsequently stripped of his office by the State Senate president. The Senate is expected to take up an alternative bill.
Arm of State: Not
The Supreme Court late last month provided further clarification about the implications of the "arms of the state" sovereign immunity doctrine under the 11th amendment in other circumstances. Northern Insurance Company of NY v. Chatham County, Georgia involved a suit in admiralty by an insurance company that sought damages in connection with the collision between an insured boat and a county drawbridge that was alleged to have malfunctioned. The county asserted immunity from suit in admiralty, arguing that it possessed "residual immunity" for purposes of admiralty law, even though it could not have asserted immunity under the "arm of the state" immunity doctrine for purposes of 11th amendment sovereign immunity analysis.
In an opinion by Justice Thomas, the unanimous court held that: an entity that does not qualify as an “arm of the State” for Eleventh Amendment purposes cannot assert sovereign immunity as a defense to an admiralty suit. He reasoned that sovereign immunity from federal actions results from sovereignty that pre-existed ratificaiton of the Constitution and that related principles regarding "arms of the state" should apply in admiralty actions as well. The Court also rejected the county's alternative argument that a distinct sovereign immunity doctrine should bar in personam admiralty suits in cases arising from the county's exercise of core state functions relating to navigable waters.
Tuesday, March 14, 2006
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.
Friday, March 10, 2006
States Seek Redress on Medicare Clawback
The National Conference of State Legislatures reports that five states (Texas, Kentucky, Maine, Missouri, and New Jersey) have filed a U.S. Supreme Court complaint regarding provisions of the Medicare Modernization Act relating to drug expenditures for individuals with dual eligibility under Medicaid and Medicare. Ten others have filed an amicus brief in support of the base complaint. The complaint focuses on adverse effects on state sovereignty. Press releases from the respective attorneys general of the complaining states explain their view, in terms such as the following from the New Jersey Attorney General:
"Under the new law, which took effect in January of this year, New Jersey and the 49 other states are required to help fund federal Medicare coverage for dual eligibles via a monthly payment to Medicare commonly referred to as the “clawback.” It represents the first time since enactment of the Medicare program in 1965 that a significant portion of a federal Medicare benefit is being financed by state payments. New Jersey’s lawsuit contends that, in requiring states to help fund an entirely federal program, the federal government is encroaching on the State’s sovereignty.
“Our contention is that the Medicare clawback provision is unconstitutional because, among other things, it undermines the ability of New Jersey to control its own destiny as a state,” said Attorney General Farber. “In requiring the states to pay a specified dollar amount to support a federal program, the new law eliminates our ability to exercise control over a fundamental state function – spending.”
Here's how the National Conference of State Legislatures explained the situation:
"Phased-down state contribution payment refers to the states' monthly payment made to the Federal government beginning in 2006 to defray a portion of the Medicare drug expenditures for full-benefit dual eligible individuals whose Medicaid drug coverage is assumed by Medicare Part D. The monthly state contributions for each year, beginning in January of 2006, will be the product of the projected monthly per capita drug payment, the total number of full-benefit dual eligible individuals for the state in the applicable month, and the applicable ten year phased- down factor for the year (see the following table). State contributions will decline each year until 2015, at which time the applicable 10 year phased-down factor for each year will be fixed at 75 percent."
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.
Monday, March 6, 2006
Rumsfeld v. FAIR & constitutional conditions
Today the U.S. Supreme Court issued its decision in Rumsfeld v. Forum for Academic Institutional Rights (FAIR) (No. 04-1152), the case that challenged the Solomon Amendment that sought to condition federal funding on law schools' willingness to permit military recruiters on their campuses despite the military's "don't ask, don't tell" policies. The unanimous Court (Alito, J. not participating) spoke in a decision authored by Chief Justice Roberts.
As indicated in the Syllabus (continued below), the Court found that the Solomon Amendment regulates conduct rather than speech. The Court indicated that law schools were required by the statute to offer the military the same access to their campuess and students as is provided to non-military recruiters. The Court noted that there are limits on Congress' ability to condition recruit of funds but said that a funding condition could not be found unconstitutional if it could be imposed directly. The Court concluded that the First Amendment did not bar Congress from imposing an access requirement since the Solomon Amendment regulated conduct (rather than speech), did not require law schools to engage in compelled speech (since they could still disagree with military policy), and did not require undesired expressive association (recruiters were not deemed to impact law schools' associational rights).